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^«^

-»*■ :

' -^

REPORTS OF CASES

AEGUED AND DETEKMINED

^nglisl €mxxU ni Cnmntflu |Calu.

TABLES OF THE CASES AND FBINCIPAL MATTERS.

wrni AimrrroNAL cases dectded durtkg teb same pertod, selected from the oon-

TEHPORANBOUS RKPOKTS ANU FROM TUB I>ECISIONa IS THK II0U3B OF LOADS,
WITE E£FER£3#C£i TO DECIBIONS IN TfIB AMEKICAK O0UltT&

VOL. CIX.

COSTTAT^ma

THR CASES ARdUED AND DETEHMIXED IN THE COURT OF COMMON PLEAS,

AN0 IN THE EXCHEQUER CIlAMDEH, IN MICHAELMAS TEBM AND

VACATION, IS03, AND HILARY TERM, 1864,

JAMES PASSONS, Esq.,

EBITOR*

* ■* mm* #,

1* * ^ * ^ ,

■» » ff * *- - •

PHILADELPHIA:

T. & J. W. JOHNSON & CO., LAW BOOKSELLERS,
aa. G3G CBitTiioT stmciT.

1873.

359715

• » .• ••• • • • • **• * * «

COMMON BENCH
REPORTS.

CASES ARGUED AND DETERMINED
m

THE COURT OF COMMON PLEAS,

AiiD nr THx

EXCHEaUER CHAMBER,

MICHAELMAS TERM AND VACATION, 1863, AND HILARY

TERM, 1864.

JOHN SCOTT, ESQ.,

or TBI INNER TEMPLE, BARRI8TEB-AT-LAV.

VOL. XV.

WITH REFERENCES TO DECTSI0N8 IN THE AMEHICAN COURTS.

JAMES PARSONS, Esq.

BDITOR.

PHILADELPHIA:
T. k J. W. JOHNSON & CO., LAW BOOKSELLERS,

NO. 53$ CHBSTNUT STREET.
1873.

Bnterad, aoeording to Aet of CongreMi in the jwt 1869, by

T. A J. W. JOHNSON A CO.,

in the Clerk's Office of the District Court of the United States, in and for the BMtera
District of PennsyWania.

1IBAR8 k DUSBllBBar, 8TBBB0TTPBR8.

JUDGES

THE COURT OF COMMON PLEAS.

DUBING THB PERIOD COMPBISBD IH THIS YOLUMB.

The Right Hon. Sir William Eblb, Knt., Lord C. J.
The Hon. Sir Edwabd YAuaHAN Williams, Ent.
The Hon. Sir Jambs Shaw Willbs, Ent.
The Hon. Sir John Babnabd Bylbs, Ent.
The Hon. Sir Hbnbt Singbb EBATDre, Ent.

ATTOBNBTS-aBNBBAL.

Sir William Athbrton, Ent.
Sir BouNDELL Palmbr, Ent.

SOLIGITORS-GBNERAL.

Sir RouNDBLL Palmbr, Ent.

Sir RoBBRT Porrbtt Collibr, Ent.

TABLE

THE NAMES OP THE CASES

RSPORTBD 15 THIS VOLUME.
J^ The names of the Additional Cases are printed in Baiie.

PAoa

iidanis, Whiteley v. . . 392
AddamSy reap., Cannter, app. 512
Aldington and Cheaahire, In re 875
Aldridge v. Great Western Rail-
way Company 562
Alkrd 9. Bourne ... 468

Bainton, Blackman v, . 432

Baird v. Williamson . 876

Barber v. Nottingham and Grant-
ham Bailway and Canal Com-
pany ...

Barker v. Highley .

Barclay, Barry v.

Barry v, Barclay

Bartholomew v. Markwick

Benham, Bennett 0.

Bennett v. Benham .

, app., Blain, reap.

Berkeley, Collingwood v.
Berkley v. Shafto
Berridge, reap., Felkin, mp]^,
Beran 9. W&itmore .
BiDin^, Rosewame v.

. 27

. 849

. 711

. 616

. 518

. 145

. 79

. 257
483, 442

. 316

Bishop of Exeter ( jBmiy Lord)

and BorweU y. Manhali . 857

Blaokman v. Bainton 433

Blaekmore v. Higgs . 790

Blain, reap., Bennett, app. 518

Booth V, Gair .... 291

, reap., Henrette, app. 500

BortoeUy Henry Lord Bishop of

Exeter and, y. MarshaU . 857

Bonard, Vanqnelin ir. 341

Bonillon v. Lnpton . 113

Bourne, AQard ir. . . . 468

Bradney, reap., Growther, app. . 586

Brewer, Heath v. . . . 803
Bridgnorth (Mayor, &c.), EUia

V 52

Brook, reap., Sayage, app. . 264

BuU V.Clarke ... 851

Caunter, app., Addama, reap. 512

Cawthron v. Trickett . 754

Cheaahire, Aldington and, In re 375

Chriatopheraon «• Lotinga 809

Church v. Wright . . 760

Clarke, Bull V. ... 85^
(vii)

VIU

TABLE OF CASES REPORTED.

PAOI

Cloud, In re . 833

Cole i;. Meek .... 795
CoUingwood v. Berkeley . . 145
Commercial Union Assurance

Co., Pearson v. . . .304
Copley V. Hemingway . 447

Couch, Nelson v. . .99

Crow, Makeham v. . . 847

Crowther, app., Bradney, resp. . 536
Croydon Commercial Oas Com-
pany, Parry t?. . . . 568
Cubley, Pigot ». . .701

Dakinv. Oxley .646

Dean v. Mellard ... 19
Dickson, Submarine Telegraph

Company i; 759

Dobson, Heap v. . . . 460
Dodsv. Eyans . .621

Dunkley, resp., Robinson, app. . 478

Eldridge v. Stacey . .458

Ellis V. Bridgnorth (Mayor, &c.) 52
Evans, Dpdsv. . .621

Exeter f Henry Lord BUhop ofj
and Borwell y. MarihaU 857

Felkin, app., Berridge, resp. . 257

Floud, resp.. Force, app. . 543

Force, app., Floud, resp. . 543

V. Warren . . .806

Fryer v. Kinnersley . 422

Oair, Booth v. ... 291

Oarbutt, app., Treyor, resp. . 550

Gkrdiner v, Jelliooe 170

Goodman v. Holroyd 839

Gore ». Grey (Bart.)

Grant, Shand v.

Great Western Railway

Aldridge v. .
Grey (Bart.), Gore ».

Hall, resp.. Smith, App.
Heap V. Dobson
Heath v. Brewer
Hemingway, Copley v.
Henrette, app.. Booth, resp.
Higgs, Blackmore t;.
Highley, Barker v. .
Hill, Lara v. . .
Holroyd, Goodman v.
Howells, app., Wynne, resp,

Jarman v, Lucas
Jellicoe, Gardiner v,
Johnson v. Stear
Jolly V. Rees .
Jones, Robbins v.
, Smart v.

Co.,

Keith, Kidner v,
Kidner v. Keith
Kinnersley, Fryer v.
Knight, Morgan v. .

Lambert, Sichel v, .
Lara v. Hill
Lawton, Miller v,
Leigh V. Pendlebury
Lloyd, Montefiore v,
London and South Western Rail-
way Go V Webb

567
324

582
567

485
460

803

447

500

790

839

3,17

474
170
330
628
221
717

422

669

781

834

815

203

•

450

TABLE OF CASES REPORTED.

Lotioga, CbristophersoD v,
Lowndes, Ringland v,
Lucas, Jarman v,
LnptOD, Bouillon v. ,

PAOI

809
173

474
113

Mace V. Philcox ... 600

Makeham v. Crow . 847

Markwick, Bartholomew v. 711
Manhallf Henry Lord Bishop of

Exeier and BonoeU Y, . . 857

Meek, Cole v 795

Mellard, Dean v. . .19

Memoranda.
Judgei,

Death of Creflswell, J. 1

Wightman, J. . 581

Promotion of Wilde, B. 1

Appointment of Pigott, B. 2

Shee, J. . 581
Attorney and Solicitor' Gene^
ral.
Resignation of Atherton, A.

G 2

Promotion of Palmer, S.

G 2

Appointment of Collier, S.

G 2

Queen* iCoumel,

Cooke, Gray, Powell, Loch 2

Ballantine, Seijt., patent of

precedence . 581

Miller 9. Lawton .834

Montefiore r. Lloyd .. 203

' Morgan v. Knight . . .669

Morrison v. Wookey 457

Neboo V. CoQcb .... 99
North Eastern Railway Co*,, Ok-
ladaand, larft .. .. .680

North Eastern Railway Co., Ox-
lade V. . . .695

Nottingham and Grantham Rail-
way and Canal Co., Barber v. 726

Odden, Wilcox v. . . .837

Oxlade and The North Eastern

Railway Company, In re 680

Oxlade V. The North Eastern

Railway Company • 695

Oxley, Dakin 9. . . . 646>

Parry v. Croydon Commercial

Gas Company

66a

Pearson v. Commercial Union

Assurance Co.

804

Pendlebury, Leigh v.

815

Philoox, Mace v. . • .

600

Phillips, White v. . . .

242

Pigot 17. Cuhley

701

Promotions, see Memoranda.

Rees, Jolly v

628

Richardson, Smurthwaite v.

463

Ringland v. Lowndes

173

Bobbins v. Jones

221

Robinson, app., Dunkley, leep. .

478

Rosewarne v. Billing

316

S.
Savage, app., Brook, resp.

264

Shand V.Grant

824

Shafto, Berkley V. .

Sicbel V. Lambert

781

Smart v, Jones

Smith, »pp., Hall, resp. .

486.

Smuidiwaite v. Ricbardson

46a

TABLE OF CASES REPORTED.

TAW

Stacej, Sldridg« V. .

458

Stear, JohoBon v. . . .

830

Warren, Force v. .

. 806

Sabmuine Telegraph OomimAy

Webb, London and Sovtit West-

V. Dickson ....

759

em Railway Co. v.
White \. Phillips .

. 460
. 245

Whiteley v. Adama .

. 392

Trivor, reap., Garbatt) app»
Tricket^ Cawthron «.

550
764

Whitmore, BeTan v.
Wihsox V. Odden
Williamson, Bwrd v.

438,442

. . 887

. 876

Wookey, Morriaoa v.

. 457

Wright, Ch«Mk «. .

. 750

VanqvellA r. Bonard

341

Wynne, reap., Howells,

H>p- . 8, 17

TA^LE OF GASES CITED.

Ackroyd v. Smith, 10 0. B. 164

Aoton o. Blandell, 12! M. A W. 324 .

Adams v, Fisher, 3 MVlne ft Cr. 526

Alder V. Paok, 5 Dowl. P. 0. 16 ....

Allen 9. Cameron, 1 C. ft M. 832 .

V. Sharp, 2 Exch. 352 .... »

Anderson v. Chapman, 5 M. ft W. 463 .
Andrews v. Elliott, 5 Ellis ft B. 502, 6 Ellis ft B. 338
Annen v. Woodman, 3 Taunt 30 • • , «
Atkyns v. Pearce. 2 0. B. N. S. 763 ...
Attorney-General v. Bonwens, 4 M. ft W. 171, 191 .

- — ' — 9. London (CorporacioJi}, 3 M'N. ft 0.

Aostralasia (Bank of) t>. Nias, 16 Q. B. 717 .
Avery v. Bowden, 5 Ellis ft B. 714 .

(in error), 6 Sllis ft B. 953 .

Ayleshury Case, 12 Jonrn. 487 ....

347

ftD«Gto73I

Backhouse v. Bonomi, 9 Home of Lords Oitie» 503

Bailej 9. Stephens, 12 C. B. N. S. 91

Bailhe v. Mondigliani, 1 Park Ins. c. 2, p. 116

Balnbridee v. PKskerine, 2 Sir W. Bl. 1^ .

Baird v. WHliamson, 15 C. B. N. S. 377

Bakewell, In re, Ex parte Batler, 2 M.

Bamford v. lies, 3 Exoh. 380 .

Barber o. Lamb, 8 C. B. N. S. 96 .

Barker v. Stead, 3 C. B. 946 .

Barnes v. Ward, 9 C. B. 392 .

Bamett v. Hooper, 1 Fost ft Fin. 412, 467

Barrs v. Jaekson, 1 Phillips 582

, 1 Y. ft a, C. C. 588

385p 386, 987, 398, 741
854

• •

791

. en

o4tS, owl
362,368

716,*.

716; ».
491, 498

198,

62, «

. 658

. 636

738

674, 679

.616

109, n.

. 161

227, 228, 233, 240

. 869,n.

. 109, n.

. . 109

o43. 07W, o44

. . 779

• 7711

8 Scott N. R. 1019,

Bartlett v. Lewis, 12 C. B. N. S. 249
Batavier, 19 Jurist 19
Baleman v, Bluok, 18 Q. B. 870

Baxter, app., Brown (or Newman), resp., 7 M. ft 6(. ^irv, » v^w». a^. a., ^vxir,
1 Lntw; W. Cas. 287 . ... . 525, 327, 528, 529, 530, 533, 538

Bayley v. Griffiths, 1 Hurlst ft Colt. 429 342, 843

Beamish, app.. Stoke, resp., 11 C. B. 39, 2 Lutlr. Beg. Cas. 189 . .480

Beaafort(Dakeof)«. Morns, 6Har8 3^ 389

Beekov. Smith,2M. ftW. 191, 195 818

BedfordCase,2Doag.E.C. 122,123 495,499

Bell, Ex parte, In re Xaforest, 32 Law J., Bankrnptisy 50 . .697

— — IK Carey, 8 C. B. 887 847

-*---t.aai«ner,4M.ftG. 11, 4SoottA.lt. 621 328

BellMfs «. Ebsworth, 3 Campb. 53 211,212,213,216,219

Bengja, Swabey'sAdm.R.468 104,112

Benjamin v. Beleher, 11 Ad. ft E. 350, 3 P. ft B. 317 679

Bennett v. Deaoon, 2 C. B. 628 428

Bentley v. Griffin, 5 Taunt. 356 631

Biaya o. Chesapeake Insoraooa Oompanyf 7 Oraneh 415 • . ^ . 298

Zll

TABLE OF CASES CitED.

.471

N.987

J., Q. B

Biccard v. Shepherd, 14 Moore's P. C,

Biffin 0. Bignell, 7 Harlst. & N. 877

Bilbie v, Lumlej, 2 East 469 .

Bird V. Great Northern Railway Company, 28 Law J., Ezoh,

V. Higginson, 2 Ad. A E. 696, 4 N. & M. 505

Bir6 V, Moreau, 4 Bingh. 57, 12 J. B. Moore 226
Bishop 0. Bedford Charity (Trustees), I Ellis t Ellis 697

V, PenUand, 7 B. A C. 219, 1 M. A R. 49 .

Bisseirs Trust, In re, 25 Law J., Chan. 323 .
Blackham v. Pu^h, 2 C. B. 569

Blake v. Great Western Railway Company, 7 Harlst k
Blasco o. Fletcher, 14 C. B. N. S. 147 .. .
Bligh V, Brent, 2 Y. & C. 26$, 3 M A W. 422 .

Blissett r. Hart, WiUes, 503

Blundell v, Cotterall, 5 B. A Aid. 268 .. .
Bolch.r. Smith, 7 Hurlst. & N. 736 .
Bold Buccleugh, 7 Moore's P. C. 267

Bond V. Nutt, Cowp. 601

V. Rosling, 1 Best A Smith 371 .. •

Bonomi v. Backhouse, E. B. & £. 642 .

Booth o. Clive, 10 C. B. 827

Bourne v. Freeth, 9 B. & C. 632, 4 M. ft R. 512 .
Bowker o. Burdekin, 11 M. A W. 128 .

Bowles ». Orr, 1 Y. & C. 464

Bradley v, Southampton Local Board of Health, 24 Law

Brady r. Todd, 9 C. B. N. S. 592 . .

Bridgland v. Shapter, 5 M. A W. 375

Brierly v. Kendall, 17 Q. B. 937 .

Bright 0. Hutton, 3 House of Lords Cases 341

Brittain v, Kinnaird, 1 Brod. & B. 432, 4 J. B. Moore 50

Broadbent v. Imperial Gas Company, 2 Jurist, N. S. 1132

Brock f>, Copeland, 1 Esp. N. P. C. 203 .

Brodie v. Howard. 17 C. B. 109

Bromage v. Prosset, 4 B. ft C. 247, 254, 6 D. ft R. 296 .

V. Vaughan, 9 Q. B. 608

Brooke r. White, 1 N. R. 330

Brooks V. Blanshard, 1 C. ft M. 779

V. Cock, 3 Ad. ft E. 138, 4 N. ft M. 652

Brouncker v. Scott, 4 Taunt. 1

Brown, Ex parte, 1 Yes. ft B. 60

V. Croome, 2 Stark. N. P. C

V. Glenn, 16 Q. B. 254 .

V. Mallett, 5 C. B. 599 .

— ^ V. Robins, 4 Ilurlst. ft N. 186

». Wilkinson. 15 M. ft W. 391

Brownlow v. Metropolitan Board of Works, 13 C. B. K. S. 768
Buckridge v. Ingram, 2 Yes. inn. 652 ....
Bulmer, app.. Norris. resp.. 9 C. B. N. S. 19, K. ft G. 321
Burges v. Wickham, 33 Law J., Q. B. 17

— , 33 Law J., Q. B. 17, 3 Best ft Smith 669

Burlaiid v. Kingstou-upon-HuU (Local Board of Health), 32 Law
Burnett v. Hooper, 1 Fost. ft Fin. 412, 467 .

Burnside o. Dayrell, 3 Ezch. 224

Burton v. Tannahill, 5 Ellis ft B. 797

Busk V. Royal Exchange Assurance Company, 2 B. ft Aid. 72
Butler, £z parte. In re' Bakewell. 2 M. D. ft De Gez 731

». AWewhite, 6 C. B. N. S. 740

». Hohson, 4 N. C. 290, 5 Sooit 798 ....

5 N. C. 128, 5 Scott 824 ....

PACK

122, 124, 130, 137. 141
. 632
328, n.
. 594
. 720
. 700
. 227
. 138
. 670
. 410
. 591
. 659
527, 529, 533
. 75

611, 613
. 229

105, 109

125, 128
. 720
. 92
806, n.

160, 168
39,42
. 362
. 744

834, 836
. 75

336, 338
. 162

297

230

^tterfield v. Forrester, 11 East 60

Caledonian Railway Company, ap
Campbell v. Corley, 28 Law T. 10

, 8prot» reap., 2 Maoq. 449

743

456

231

401

706

715

426

811

755, 756, 758

672

404

459

251, 252, 255, 774

103

252

257

524, 523, 526, 532

145, n.

. 308

B.17 194

809, n.

. 161

20, 21, 23

. 138

674, 679

618, n.

672. 678, 679

679

770

J.,Q.:

93,94
. 782

TABLE dF CASES CITED.

ziu

2 Harbt. & N. 267

338

PAOB

. 3S

. 850
. 362
. 782
. 672
. 474

732, 743
. 252
. 757
. 38
. 385

740, 741
. 792

412, 428

335, 339

. 714

. 76

. 407

632

122
21

809,

625, 627| D.
724

Campbell e. Stein, 6 Dow 116 .

Castelli o. Groom, 18 Q. B. 490

CMtrique v. Imrie, 8 C. 6. N. S. 1 .

Catterall v. Cateerall, 1 Rob. E. R. 304

Chambers, In re. 3 Mont. & Ayr. 294, 2 Deacon 394

Chandler v. Vilest, 2 Wms. Saand. 117, n.

Chapman v, Monmoathshire Railway and Canal Co.

V. Rothwell, E. B. & E. 168

Chappel V. Comfort, 10 C. B. N. S. 802

Chappell 9. Bray, 3 Law J., Ezch. 24

Chasemore v. Richards, 2 HarUt. & N. 168, 7 House of Lords Cases 349

, 7 House of Lord Cases 349

Chew V. Holroyd, 8 Exch. 249 .

Child V. Affleck, 9 B. & C. 403, 4 M. & R

Chinery v. Yiall, 5 Hurlst. & N. 288

Chisman v. Count, 2 M. ft G. 307, 2 Scott N. R. 569

Clayton v. Corby, 5 Q. B. 415, 2 Gale ft D. 174

Cleayer v. Sarraude, 1 Campb. 268 .

Clifford V. Laton, 3 C. ft P. 15, M. ft M. 101 .

Cochrane r. Fisher, 2 C. ft M. 581, 4 Tyrwh. 424 (in error, 1 C. M.

5Tyrwh.496) ....
Cockerell v, Aucompte, 2 C. B. N. S. 440
Cocks o. Peachey, 2 M. ft Ry. 420 .
Coe 9. Clay, 5 Bingh. 440, 3 M. ft P. 57
Coges 9. Bernard, 2 Ld. Raym. 909, Com. 133, 1 Salk. 26, 3 Salk. 11, Holt 13 588,

705,707,710

Colchester Case, 1 Peck. 508 496

(Mayor, ftc.,) 9. Brooke, 7 Q. B. 339 776

Cole 9. Green, 7 Scott N. R. 682, 6 M. ft G. 872 811,812

Collins 9. Blantem, 1 Smith's Leading Cases, 5th edit 337 ... . 810
Copland, app., Bartlett, resp., 6 C. B. 18, 2 Lutw. Reg. Cas. 183 478, 480, 481, 482,

483, 484, 486
Cook, app., Humber, resp., 11 C. B. N. S. 33 . 503, 505, 507, 508, 510, 511

Cooke 9. Tonkin, 9 Q. B. 936 161

■■ 9, Wildes, 5 Ellis ft B. 328 403

Cooper 9. Barber, 3 Taunt. 99 738

9. Walker, 2 Best ft Smith 770 233

Corby 9. Hill, 4 C. B. N. S. 556 229

Comman 9. Eastern Counties Railway Company, 10 Ezch. 771 . . . 230

Cortis 9. Kent Waterworks Company, 7 B. ft C. 314 811

Cotton 9. Wood, 8 C. B. N. S. 568 594

Coupland 9. Hardingham, 3 Campb. 393 228, 231

CoTell 9. Gerts, 9 Law Reporter for July, 1846 (American) . . . .708

Coventry Case, 1708, 16 Journ. 129 497, 499

Cowell 9. Edwards, 2 Bos. ft P. 268 438

Cox 9. Burbidge, 13 C. B. N. S. 430 774

Coxhead 9. Richards, 2 C. B. 569, 603 .... 406,410,426,428,429

Craythome 9: Swinburne, 14 Yes. 160, 164 438

Curwen 9. Salkeld, 3 East 538 . . 71, 78

Cutter 9. PoweU, 6 T. R. 320 649,712,713

Dalrymple 9. Dalrymple, 2 Hagg. C. C. 54 788

Davidson 9. Gwynne, 12 East 381 660, 667

Daries 9. Mann, 10 M. ft W. 546 .770

r, P. Price, 6 Law Times N. S. 713 192,195,198,201

9. Williams, 16 Q. B. 546 . 753, 754

, app., Waddington, resp., 7 M. ft G. 37, 8 Scott N. R. 807, 1 Lutw.

Reg. Cas. 159 . 504

Deering 9. Winchelsea (Earl), 2 Bos. ft P. 270 438, 439

Delafield 9. Tanner, 5 Taunt. 856, 1 Marsh. 391 475

De Lisle 9. Priestman, 1 Browne's Penn. R. (American) 176 . . . . 708

Delisser 9. Towne, 1 Q. B. 333 627, db

Dell 9. King, 2 Hurlst. ft Colt. 84 827, d2&^'

Demandray 9. Metcal^ Pre. Ch. 419, 2 Yem. 691 705

<!▼

TABLE OF GASES CITED.

De lUitsen o. Lloyd, 6 Ad. & £. 456, 6 N. & M. 776
Dickenson, In re, £z parte Turquand, 3 Mont. D. 4 De G. 475

Dimes r. Petley, 15 Q. B. 270

Dixon r. Robinson, 3 Mod. 107 ... .

V. Sadler, 5 M. A W. 405, 414 .. .

Dobson, app., Jones, resp., 5 M. & G. 112, 8 Soott N. R. 80,
Doe d. Edmunds v, Llewellen, 2 C. M. A R. 503 ,
Domett 9. Beckford, 5 B. ft Ad. 521 ...
Don Francisco, 32 Law J., Adm. 14 . .
Doubleday v. Muskett, 4 M. ft P. 750, 7 Bingh. 110
Downing, app., Luekett, resp., 5 C. B. 40, 2 Liutw. Reg.

Downton Case, 1 Luders, 493

Doyle 0. Lawrence, 2 L. M. ft P. 368 .. .
Drayton v. Dale, 2 B. ft C. 293, 3 D. ft R. 534
Dunoroft V. Albrecht, 12 Sim. 189 . . ; .
Dunman v. Bigg, 1 Campb. 269 ....
Dutton V. Powles, 2 Best ft Smith 174, 191 .
V. Solomonson, 3 B. ft P. 582

Cas.

ILutw.Reg.

Sdie 9. East India Company, 1 Sir W. Bl. 295, 299
Bdwards v. Hall, 6 De dez, M'N. ft G. 74
Bidsfortli, app., Farrer, resp., 4 C. B. 9, 1 Lutw. Reg. Cas. 517
Blliott V. North Eastern Railway Company, 32 Law J., Chan, '
BUis 9. Bridgnorth (Mayor, ftc), 15 C. B. N. S. 52

9. Hunt, 8 T. R. 464

Ktherington 9. Parrot, Salk. 118, 2 Ld. Rajm. 1006
Bvans, In re, Ez parte Storks, 2 Rose B. C. 179 .
' ■ ft Finch*s Case, Cro. Car. 473 .. .

9. Porster, 1 B. ft Ad. 118 ... .

^ 9. Harris, 2 Yes. ft Bea. 361 ...

Faulkner, app., Upper Boddington (Ofersaerg), resp., 3
Feize 9. Thompson, 1 Taunt. 121

CB,

Ferguson 9. Mahon, 11 Ad. ft £. 179, 3 P. ft D. 143

Fisher 9. Prowse, 2 Best ft Smith^ 770

Fitch 9. Jones, 5 Ellis ft B. 238

Fortitude, 2 Dods. Adm. R. 58

Fowler 9. Coster, 10 B. ft C. 427, 5 M. ft R. 352

Fox 9. Clifton, 4 M. ft P. 676, 6 Bingh. 776

Franklin 9. Miller, 4 Ad. ft £. 599 .

Freeman, app., Gainsford, resp., 11 C. B. N. S.

French r. Backhouse, 5 Burr. 2727 .

Fryer a Kinnersley, 15 C. B. N. S. 422 .

^eon 9. Chambers, 9 M. ft W. 460

Gardiner v. Jolliooe, 12 C. B. N. S. 568 .
Gardner 9. Slade, 13 Q. B. 796
Garrett 9. Melhuish, 4 Jurist N. S. 493 .
Gibbe 9. Knightley, 2 Hurlst. ft N. 34 .
Gibson 9. Small, 4 House of Lords Cases 353

^ 9. Sturge, 10 Exch. 622 . .

Oilbari 9. Dale, 5 Ad. ft E. 543

Gilpin 9. Fowler, 9 Ezoh. 615 .

Gloucestershire Case, Orme 121

Glynne 9. Roberts, 9 Ezch. 253

Godson 9. Home, 1 Brod. ft B. 7 «

Goldson 9. Buck, 15 East 372 .

Gore p. Grey (Bart), 13 C. B. N. S. 138 .

Qracie 9. Maryland Insurance Company. 8 Cranch 84

Graham 9. Barras, 5 B. ft Ad. 1011 .

Great Central Gas Consumers Company 9. Clarke, 11 C. B. N.

68. K. ft

G.448

402

632,

N.S

picm

. . 74

. 439

. 770

. . 7i

124, ISO, 133

.Cas. 105 504

. 564

. 757

. 667

157, 160, 168

. 508,509

. 495

. 618, a,

672, 678, n.

. 533

. 407

. . 773

. 716

634,
756,

.. 302

. 534

540.546

94, n.

281,11.

. 333
640,640

. 672

. 509
757, 768

. 846

412

48a
624
369

227, 230, 231, 233, 243
. 319
108, 111
. 675
. 160
. 713
. 489
. 33
808, n.
673, 677

S. 814

(in error). 13 C.B.N.

• 170
. 411
657, 660
. 466
. 123
. 665
. 594
, 407
. 496
. 623
. 705
. 671
. 567
. 299
. 129
574
574

S.838

Great Indian Peninsular Railway Company v. Saundera, 1 Best ft Smith 41,
2 Best ft Smith 266 291,295,300,302,303

TABLE OF CASES CITED.

Oriifwold V. New York iDsuninee Co., 3 Johns. (American) 321

Qndgen r. Bassefc. 6 Ellis A; B. 986

Qj9 V. Felton, 4 Taunt. 876

Hackwood IT. LjaU, 17 C. B. 124

Haigh*8 Estate. In re, 31 Law J., Chan. 420 .. .
HaineSf app.. Roberts, resp., 7 Ellis & B. 625 ...
Hambidge v. De la Croupe, 3 C. B. 742 .
Hammack v. White. 11 C. B. N. S. 588 .
Hancock p. Aasten, 14 C. B. N. S. 634 .

V. York, Newcastle, and Berwick Railway Co., 10 C

Harland r. Emerson, 8 Bligh N. S. 62

Harmer, app., Bell, resp., 7 Moore^s P. C. 267 105

Harmond v, Pearson, 1 Campb. 515 776

Harris ». Ryding. 5 M. & W. 60 91

Harrison v. Bnsh, 5 EllU & B. 344, 348 . .409, 419. 421, 427, 428, 429. 431, n.
0. London. Brighton, and South Coast Railway Co., 2 Best ft Smith 122 592

PAOB

653, 658, 659

. . 41

. 318

. 29

. 193, 199

. 92

694, 774, n,

459, n.

B. 348 252, 776, n.

p. 299, n.

Hassel r. Long, 2 M. ft W. 363

Hatch p. Lewis, 7 Hurlst ft N. 367

Haiton p. Royle, 3 Horlst ft N. 500

Havelock p. Rookwood, 8 T. R. 268

Hawken p. Bourne, 8 M. ft W. 703 .

Hayward r. Duff, 12 C. B. N. S. 364

Ileartlev, app., Banks, resp., 5 C. B. N. S. 40, K. ft O. 219

Heath, app., llaynes, resp., 3 C. B. N. S. 389, K, ft G. 199

Helme p. ^ith, 7 Bingh. 709, 5 M. ft P. 774

Helps p. Winterbottom, 2 B. ft Ad. 431 .

Henderson p. Henderson, 6 Q. B. 288

, 11Q.B. 1015 .

Herbert p. Sayer, 5 Q. B. 965, Dav. ft M. 723
Hermann p. Seneschal, 13 C. B. N. S. 392, 403
Herschfeld p. Clarke, 11 Ezch. 712
Herver p. Dowson, Bull. N. P. 8
Hibbert p. Martin, Park Ins., 6th edit, vol. 1,
Hick, In re, 8 Taunt 694 ...
Hiekie p. Salamo, 8 Ezch. 59 .
Hilton p. Giraud, 1 De Gez ft S. 187
Hinton p. Dibbin, 2 Q. B. 646, 2 Gale ft D. 36
Hochster p. De la Tour, 2 Ellis ft B. 678
Hodgkinson p. Ennor, 32 Law J., Q. B. 231
Hodgson p. Duce, 2 Jurist, N. S. 1014 .
Holdsworth t. Wilson, 8 Law Times N. S. 434

p. Wise, 7 B. ft C. 794. 1 M. ft R. 673

Holland p. Russell, 1 Best ft Smith 424 .

, in error, 32 Law J., Q. B. 297

Holt p. Brien, 4 B. ft Aid. 252

p. Meddowcroft, 4 M. ft Selw. 467 .

p. Odber, 11 East 118 .. .

Hope, 1 W. Rob. 154 ....
Hopewell p. De Pinna. 2 Campb. 113
Hopkins p. Nightingale. 1 Esp. N. P. C. 98
Horrocks, Ez parte, 8 Law Times N. S. 663
Hoansell p. Smyth, 7 C. B. N. S. 731
Hntton p. Osborne, 1 Selw. N. P. 445, I2th edit
Hatton p. Upfill, 2 House of Lords Cases 674

IMerton p. Jewell, 14 C. B. N. S. 665 .

larie p. Castriqne, 8 C. B. N. S. 405

Irring p. Clegg, 4 M. ft Scott 572, 1 N. C. 53 .

Jarris p. Rogers, 15 Mass. R. (American) 389
Jessop p. Lutwyche, 10 Ezch. 614 .
Jinks p. Edwards, 11 Ezch. 775 .. .
John and Mary| Sw8.bey*8 Adm. R. 471 .

214
. 791
. 33
. 362
. 633
. 837

488, 490, 504
. 488
. 32
. 715
. 369
369, n.
670, 671, 672, 678
. 805, 806

809, 810, 814
. 407
124. n.
. 188

618, 619, 620
. 533
. 588
. 713, 716
. 738
. 456
. 190, 192
. 138
. 326
. 329
. 634

188, 192, 198
. 715

106, 107, 111
. 782
. 506
. 739
. 229, 230
. 588
. 162

. 829
. 362
. 801

. 336
318, 320, 321, 322, 323
. 724
104, 111. H2

ZVl

TABLE OF CASES CITED.

Johnson v. Baker, 4 6. & Aid. 440 .

V. Midland Railway Company, 4 Exch. 367

». Stear, 15 C. B. N. S. 330

V. Sumner, 3 Hurlst. & N. 261 .

Jones t>. Cliff, 1 C. & M. 540, 3 Tyrwh. 576

V. Davis, 16 Ves. 262 .. .

V, Richard, 6 Ad. & E. 530 .

Josephs, In re, £z parte Spyer, 32 Law J., Bankruptcy
Judson, app., Luckett, rcsp., 2 C. B. 197, 1 Lutw. Keg. Cas. 490

PAOK

. . . . 39

. 692. 693, 694

. 708

631, 632, 634, 637, 644

. 333

Kalamazoo, 15 Jurist 885

Kearney's Case, Alcock's Reg. Cas. 22 .

Keith V, Pratt (not reported) .

Kelly V. Solari, 9 M. 4 W. 54 .

Kemp V, Westbrdok, 1 Ves. sen. 278

Kilshaw v. Jukes. 32 Law J., Q. B. 217 .

King V. Thorn, 1 T. R. 439 .. .

V. Watts, 8 C. & P. 614 .

Kingston (Duchesses) Case, 2 Smith's L. C.

^ p. Knibbs, 1 Campb. 508, n.

Knight V. Cambers, 15 C. B. 562 .

682

Lade o. Shepherd, 2 Stra. 1004 ....
Laforest, In re, Ex parte Bell, 32 Law J., Bankruptcy 50
Lancashire Wagon Company v,- Fitzhugh, 9 Hurlst. & N. 502
Lang V, Anderdon, 3 B. C. 495, 5 D. ft R. 393
Laix)che v, Wakeman, Peake. N. P. C. 140
Lawrence v. Hodgson, 1 Y. s J. 16

Lee 0. Gansel, Cowp. 1

— , app., Hutchinson, resp., 8 C. B. 16, 2 Lutw. Reg. Cas.

— V, Kisdon, 7 Taunt. 188

Leg)c V. Cheesebrough, 5 C. B. N. S. 741

Le Neve r. Mile End Old Town (Vestry), 8 Ellis & B. 1054

Lewis V, Great Western Railway Company, 5 Hurlst. ft N.

Livie V. Jansen, 12 East 648

Lloyd V, Jones, 6 C. B. 81

Lockwood V, Ewer, 2 Atk. 303 ....

V. Wood, 6 Q. B. 31

London Assurance From Fire v. Bold, 6 Q. B. 514 .

London and North Western Railway Co., app., Dunham, resp.

Ltjcas V. Dorrien, 7 Taunt. 278, 1 J. B. Moore 29 .

V. Godwin, 3 N. C. 766, 4 Scott 502

hnke V, Lyde, 2 Burr. 882, 887 ... .
Lutwidge o. Gray, cited in Luke v, Lyde, 2 Burr. 882
Lycett V. Tenant, 4 N. C. 168, 5 Scott 479, 6 Dowl. P. C. 436
Lynch v, Nurdin, 1 Q. B. 29, 38

846
74
63

504

. 106

. 505, 508, 510

. 39

. 328

. . 705

. 461

. 359

. 407

. 356

. 126

319, 321, 322, 323

159

867

, 18 C

M'Dougall V. Claridge, 1 Campb. 268 .. .

M'Gaw v. Ocean Insurance Company, 23 Pickering (American)

M'Manus v, Lancashire and Yorkshire Railway Co., 4 Hurlst ft

Manby v. Scott, 1 Siderfin 109 631,

Martin v, O'llara, Cowp. 823

r. Reid, 11 C. B. N. S. 730 .

». Strong, 5 Ad. ft E. 535 .

Maryland Insurance Co. o. Bosley^ 9 Gill ft Johnson 337

Mason v. Tucker, 4 Hurlst. ft N. 536

Merchant v. Driver, 1 Saund. 307 ....

Metcaire v. Hetherington, 11 Ezch. 257 .

Midland Railway Company, app., Bromley, resp., 17 C.

Millership v. Brookes, 5 Hurlst. ft N. 797

Milnes r. Duncan, 6 B. ft C. 671, 9 D. ft R. 731 .

Mitcheson v. Oliver, 5 Ellis ft B. 419

Mondel v. Steel, 8 M. ft W. 858, 871

Monk V. Sharp, 2 Hurlst ft N. 540

405

B.372

. 230
. 697
. 337
122, 125, 128
. 673
190, n.
. 506
480, 485
. 714

826

327

636,

827
230
592
299
791
708
74
212, 214, 216. 219
593, n.
. 333
. 655
654, 657, 660, 665
. 658
192, 198
. 770

. 407

. 659

349 589

, 639, 640, 644

676

. 705
. 426
. 299
. 448
. 372
. 772
590, n., 594
. 42
328, n.
29

654, 659, 667
. 434,435

TABLE OF CASES CITED.

xvii

M<m]u r. Dykes, 4 M. & W. 567 ....
Montagne r. Benedict, 3 B. & C. 631» 5 D. & R. 532'
Moon V. Alderbury Union, 3 Ezch. 590 .
Moonom v. Page, 4 Campb. 103 ....
Morant v. Chamberlin, 6 Hurlst. & N. 541 . .
Morgan, £z parte, In re Woodhouse, 32 Law J., Bankruptcy

r. Tart, 11 Exch. 82

Morton v. Copeland, 16 G. B. 517

Mould V. Williams. 5 Q. B. 469, D. ft M. 631 .
Murray v. Stair (Earl), 2 B. & C. 82, 3 D. ft R. 278
Muschamp o. Lancaster and Preston Junction Railway Co.,
Mussen v. Price, 4 East 147 .
Myers v. Perigid, 11 C. B. 90 .

, 16 Simons. 533

, 2 De G. M'N. ft O. 599

c. Rawson, 5 Hurlst ft N. 99

c. Willis, 17 C. B. 186 .

Mytton V. MidUmd Railway Company^ 4 Hurlst. ft N, 615

Nelson 9. Cherrill, 7 Bingh. 663, 5 M. ft P. 680

, 1 M. ft Scott 452, 8 Bingh. 316

V. Couch, 15 C. B. N. S. 99

Xewbold and The Metropolitan Railway Company, 14
Newman v. Walters, 3 B. ft P. 612
New RiTcr Company, app., Johnson, resp., 29 Law J.,
North r. Great Mortnem Railway Company, 2 Giff. 64
Northampton (Mayor) v. Ward, 1 Wils. 107 .
Norton ». Fasan, 1 B. ft P. 226

Ord V. Tenwick, 3 East 103

O'Reilly v, Gonne, 4 Campb. 249 . .

■ V. Royal £!xchange Assurance, 4 Campb. 246

N.S.
93

Owen 9. Burnett, 2 C. ft M. 353, 4 Tyrwh. 133 .. .
Oxlade and The North Eastern Railway Co., In re, 1 C. B. N,

Palmer and The Metropolitan Railway Co., In re, 31 Law J,
Parry v. Croydon Commercial Gas Company, 1 1 C. B. N. S.
p. Davies, 1 L. M. ft P. 379

Passingham, app., Pitty, resp., 17 C. B. 299
Pater v. Baker, 3 C. B. 831

Patrick o. Shedden, 2 Ellis ft B. 14 ...
Pattison v. Jones, 8 B. ft C. 578, 3 M. ft R. 101

Paulr. Dod,2C.B.800

Peacock v. Sir G. Reynal, 2 Brownl. ft G. 151

Peek 0. North Staffordshire Railway Co., E. B. ft £. 980

-, (in error), 32 Law J.,

Perry v. Barker, 8 Ves. 527, 13 Ves. 198

V, Bennett, 14 C. B. N. S. 402 .. .

PetUgrew r. Pringle, 3 B. ft Ad. 514 .. .
Phillips V. Hopwood, 1 B. ft Ad. 619 .. .
Pierce p. Chaplin, 9 Q. B. 802

V. Morrice, 2 Ad. ft B. 84, 96, 4 N. ft M. 48

Piers, app., Piers, resp., 2 House of Lords Cases 331
». Tjb ' " '^ .---..

rnrle, 1 Dtury ft Walsh, 279, 299
Pha9.0arell,6M.ftW. 234 ....

Pitt 9. Donovan. 1 M. ft Selw. 639 .
Pitts, app., Smedley, resp., 7 M. ft G. 85, 8 Soott N. R.907,
Pbnchi V. Colbum, 8^ Bingh. 14. 1 M. ft Soott 51
Phmnner o. Woodhume, 4 B. ft C. 625. 7 D. ft R. 25
Pointi, app., Attwood, resp., 6 C. B. 38, 2 Lulw. Reg. Cm. 117
Pontet o. Ricroft, 1 Saund. 322, n.
F6tlMmier tr. Dawson, Holt; N. P. C. 383
Pmlon «. Tam|din, 2 Hurlst ft N. 684 ,
Friee v. Derwhuxst, 4 Mylne ft Cr. 76
0. B. N. B., VOL. XY.— 2

PAoa

. 509

635, 636, 637

211, 219

800, 802

. 230

. 818

. 467

811, 812

738, 743

. 40

M. ftW.421 . 580

' . . 714,715

529, 530, 533, 535

20, 21

. 29

. 590

405

. 676
671, 676
775, n.
. 732
. 34
. 740
. 456
. 74

. 6a?.

859

. 131
. 131
58H
S.454 680,692,694

<l. B. 259
579 .

190, 192

. 669

618, n.

560,564

. 411

. 862

408, 426, 429

713, 714, 715

. 410, 418

589

Q.B.241 ! 591,597

. 108

450, n.

122, 125, 128, 140

. 676

. 888

. 810

784, D.

. . . 784

. . . 7fi

41»

60S

718

. 868

. . 6^15

. VS

701, W, "m

Sft

. . m

L«tw.R^.€as.l68

xviii TABLE OF CASES CITED.

PAGE

Prior V. Hembrow, 8 M. & W. 873 442

Proudfoot, £z parte, 1 Atk. 252

Radnor (Earl) v, Reere, 2 Bos. & P. 391

Ralli v. Janson, 6 Ellis & B. 422 .

Ratcliff0. Davis, Yelr. 178 ....

Rayne, £z parte, 1 Q. B. 382 .

Read v. Coker, 16 C. B. 850 .

V, Victoria Station and Pimlico Railway Co.,

Reading Case, 2 Doug. E. C. 105 .. .

Redway ». Webber, 13 0. B. N. S. 254 .

Reneaux o. Teakle, 8 Ezch. 680 .. .

Regina ». Barrett, 32 Law J., M. C. 36, 9 Cox Cr. Cas. 255 .' . . . ' 15

672

737

. . . . .297

705

806, n.

1 Hurlst. & Colt. 826 732,

739, 743, 756, 749

. 492

. 330

631, 632, 635, 636, 645

737
738
624
738
812
6Q.B. 750 . . 744

V. Bolton, 1 Q. B. 66, 4 P. & D. 679

V. Dayman, 7 Ellis A B. 672

V, Fall, 1 Q. B. 636 . . .

V. Hickling (Inhabitants), 7 Q. B. 880

». Humphrey, 10 Ad. & E. 335, 2 P. & D. 691

* V. Lancaster and Preston Junction Railway Co.

e. London and North Western Railway Co., 3 Ellis A B. 443 732, 742,

743, 746, 747, n.

V. Manwaring, 4 Dears. & B. C. C. 132 783

V. Metropolitan Board of Works, 32 Law J., Q. B. 105 . . . 742

__ Railway Company, Ex parte Horrocks, 8 Law Times

N. S. 663 . ... . . . . . . 739, 742

». Millis, 10 Clark & F. 534 788

©. Rochester (Mayor, &c.), 7 Ellis & B. 910 811

R«id V, Hoskins, 5 Ellis & B. 729 716, n.

(in error), 6 Ellis & B. 953 716, n.

». Teakle, 13 C. B. 627 631, 633, 636, 645

Beynell ». Lewis, 15 M. & W. 517 . 160, 162

Reynolds v, Harris, 3 C. B. N. S. 267 624, 626

Rex 0. Aire and Csdder Navigation, 3 B. & Ad. 139 527

c. Birmingham (Inhabitants), 6 B <k C. 29, 2 M. & R. 231 . . . 811

r. Brampton (Inhabitants), 10 East 292 785. 788

V, Cotterill, 1 B. & Aid. 67 73, 74, 78

r. Gravesend (Mayor, &c.), 3 B. & Ad. 240 810

V. Great and Little Usworth, 5 Ad. & E. 261, 2 N. & M. 811 . . . 509

r. Halesworth (Inhabitants). 3 B. & Ad. 717 494, n.

r. Leake. 2 M. & N. 595, 6 B. & Ad. 469 230

V, Lloyd, 1 Campb, 261 230

V. Northleach Roads Trustees, 5 B. A Ad. 978 574

V, Palmer, 1 B. & C. 646, 2 D. & R. 793 527

V. Pedley, 1 Ad. & E. 822, 3 N. & M. 627 .... 226. 230, 236

V. Portmore (Lord). 1 B. A C. 551, 2 D. A R. 798 527

V. St. Gregory, Canterbury, 2 Ad. A E. 106, 4 N. A M. 137 . . .810

v. Starkey, 7 Ad. A E. 95, 2 N. A P. 169 71, 79

». Thomas, 2 B. A C. 128 527

p. Watts, 1 Salk. 357. 2 Lord Raym. 856 228.234

Rich 9. Basterfield, 4 C. B. 783 226, 236

V, Coe, Cowp. 636, 639 32

Ridley p. Plymouth, Stonehouse, and Devon port Grinding and Baking Com-
pany, 2 Exch. 711 , . 471

Ridsdale p. Ncwnham, 4 Camp. Ill, 3 M. A Selw. 456 . 122, 125, 127, 128, 140

Ringland p. Lowndes, 15 C. B. N. S. 173 456, n.

Roberts p. Haines, 6 Ellis A B. 643 92

p. Hunt, 15 Q. B. 17 230

-: p. Orchard, 33 Law J., Exch. 95 806, n.

Robotham p Wilson, 8 Ellis A B. 123, 8 House of Lords Cases 348 . . 92

Rogers p. Clifton, 3 Bos. A P. 587 425

p. Macnamara, 14 C. B. 27 804, n.

Rohl p. Parr, 1 Esp. N. P. C. 445 299

Rose p. Groves, 5 M. A G. 613, 6 Scott, N. R. 645 72

Rosetto p. Gorney, 11 C. B. 176 300, 301

TABLE OF CASKS CITED.

xlz

RoQX V. SalTador, 1 N. 0. 526, 1 Scott 491 .

(in error), 3 N. C. 266, 4 Scott 1

Ruddock V. Marsh, 1 Harlst <ft; N. 601 .

RuBsel V. Thornton, 4 Hurlst. & N: 788 (in error, 6

Ryan o. Shilcock, 7 Exch. 72 .

Sadler r. Nizon (or Hickson). 5 B. ft Ad. 936, 2 N.
Salmon v. Bensley, R. & M. 189
Samuel, app., Hitchmough, reap., 13 C. B. N. S. 3,
Sandwich Oase, 10 Joum. 457

jN.

. R. 919,

Saunders p. Bate, 1 Hurlst. ft N. 402

Saxonia, 1 Lushington's Adm. R. 410

Schiliasi o. Derry, 4 Ellis ft B. 882 .

Score, app., Huggett, resp., 7 M. ft G. 95, 8 Scott

Scott r. Parker, TQ. B. 809, 1 Gale ft D. 268 .

Seaton 0. Benedict, 5 Bingh. 28, 2 M. ft P. 66

Shand e. Grant, 15 0. B. N. S. 324

Sheels r. Davies, 4 Campb. 119

Sheffield Canal Go. v, Sheffield and Rotherham Railway Co., 1

Shields e. Davies, 6 Taunt. 65

Shipman v. Stevens, 2 Wils. 50

Shipton V. Thornton, 9 Ad. ft £. 314, 1 P. ft D. 216

Shore 0. Bentall, 7 B. ft C. 798, n.

Siebel p. Springfield, 9 Law T. N. S. 325
Siiuons V, Great Western Railway Company, 18 C
Simson v. Fogo, 29 Law J., Ch. 657 ...

, on appeal, 32 Law J., Chi 249

Sijis V. Brittain, 4 B. ft Ad. 375, 1 K. ft M. 594

B.805

I, 7 Dowl.

385, 387,
P. C.'282

388,

SUde p. Drake, Hobart 295
Smart p. Morton, 5 Ellis ft B. 30
Smith p. Homor, 3 C. B. N. S. 829

p. Hull Glass Company, 11 C, B. 897

p. Kenrick, 7 C. B. 515

p. Neale, 2 C. B. N. S. 67

p. NicoUs, 7 Scott 147, 5 N. C. 222,

p. Richardson, Willes 20

p. Smith, 2 Stra. 955 .

Somerrille p. Hawkins, 10 C. B. 583

Southampton Dock Company p. Richards, 1 M. ft G. 448, 1 Scott N. R.

Southcote p. Stanley, 1 Hurlst. ft N. 247

Spear p. Trayers, 4 Campb. 251

SpraU p. Harris, 4 Ha^^. Eccl. R. 405

Spyer, £x parte. In re Josephs, 32 Law J.,

Stafford (Marquis) p. Coyney, 7 B. ft C. 257

Stindt p. Roberts, 5 D. ft L. 460 .

Stinton p. Hall, 1 Hurlst. ft N. 831

Stirling p. Forrester, 3 Bligh 575 .

Stockman p. Parr, 11 M. ft W. 809 .

Storks, Ex parte. In re Evans, 2 Rose B. C. 179

Stratton p. Pettit, 16 C. B. 240

Stroud p. Deacon, 1 Yes. sen. 37 . . .

Stroylan p. Knowles, 6 Hurlst ft N. 454

Sudbury Case, Phillips 149 ....

Swanoott p. Westgartb, 4 East 75 .

Talbot (Earl) p. Scott, 27 Law J., Ch. 273
Taunton Case, 1 Doug. E. C. 370 . .
Tayler p. Waters, 7 l^unt. 374, 2 Marsh. 551
Taylor p. Hawkins, 16 Q. B. 308 .. .
p. Whitehead, 2 Dougl. 745

Hurlst ft N. 140)

ft M. 258
K. ft G. 522

Bankruptcy 63

Tenant p. Goldwin, 1 Salk. 360, 2 Lord Raym. 1089
Thames Ironworks Co. p. Patent Derrick Co., 1 Johns, ft H.
Thelluson p. Fergusson, Dougl. 360 . . • •
Thompsett p. Bowyer, 9 C. B. N. S. 284 . • .

Lutw.

PhUl

.R.

. 442
. 226
. 540

493, 498, 499
. 425
. 774
. 123

Cas. 198 503
. 812
636, 637
666, n.
. 654
484 . 853

660, 667, 756
. 474
. 300
. 138
339, n.
593, n.
362, n.
362, n.

827,

FAQS

. 659
. 659
632,634
. 327
. 459

. 77

92,95

. 794

. 472

, 390, 391, 392

. 722

. 362

. 401

337, D.

403,411

219 . 811

252, 254, 772

333

371

, 828, 831, 832

230

758'
667
438
706
672
721
846
94
494
715

456
491
719
403
235
738
705
126
467

M TABLE OP CASES CFTED.

PAGH

ffibAmpson p. Hwey, 4 Hurlst. & N. 254 Sll

^!I1!1-1— p. Ingham, 14 Q. B. 710 738,743

Tffl f!, Vil^n, 7 B. 4i C. 684, 1 M. & R. 580 671, 675

io4d ^ Flight 9 a B. N. a 377 ...... -227,231,236,252

Z — t?. HaFWns, 2 M. & Eob. 20, 8 C. ik P. 88 407

Toms, app., Luokett, reap., 5 G. B. 23, 2 Lutw. Reg. Oas. 19 . . . .503
Topgopd 5. Spyring, 1 C. M. & R. 181, 4 Tyrwh. 5d2 406, 410, 419, 421, 427, 431, n.

tpoker ». Smith, 1 Hurlst. & N. 732 . . .722

Bp^tilJ 0. Dougl^, 8. Law Times N. a 426 23, 25

BQiroa^lidt!. CrQwdj, 8C. B. K S. 477 328

Fmss V, Savage, 3 EIUs A B. 36 722

Cocker 0. Wilsoo, 1 P. Wms. 261 , 7<H, 70$

tudba^, app., Bristol (Town Gkrk), resp., 7 Seott N. R. 486, 5 M. & O. 6, 1

Xiutjir. Reg, Gw, 7 541

l^er V. Pavieq, 2 Esp. K. P. G. 478 436, 4^0

XDIMlu«lid, Ex parte. In re.Dick«nBOB, 5 Mont D. ft De O. 47^ • • • ^^'^

^9011 V. Ei^ns, 12 Ad. & £. 733, 4 P. & P. 396 402

fjQrn^an V. Smith, 6 Ellis & B. 719 1&9, ]<.^

ISrtor 9. SqU. 2 Mf be ft Gr. 89 r'7J

T$^pio.aiiu^,9Ad.ftE.406, IN. ftp. 784 73

V^nKiejr^ee v. Willis, 3 Bro. G. 0. 21 '^05

T<)|ant, 1 M. Rob. 383, 1 Notes of Gases in the Ecclesiastical Gourt 603 . S\n

^^Oifije V. le^aiUatid, 5 B. ft Aid. 171 ff H

\ir<a]^ V. Sviith, 5 B. ft Aid. 439 i<>r>

W^psey, app., Perkins, resp. (Hill's Gase), 7 M. ft G. 151, 8 Soof^t N. R. 978,

1 Lntw.Reg. Cas. 252 Hil

: : : — (Quigley's Gase), 7 M. ft G. 127, 8 Scott N. R.

^54^ 1 Lujtw. Reg. Gas. 235 . M<J

r^afburton p. Loyelanii d. Irie, 1 Hudson ft Brooke 623. 648 .. . Pll

Fafdv. Turner, .2 Ves. sen. 431, 337,..

rarman p, HaJahau, 30 Law J., Q. B. 48 616, 619, 6 H

F:arrep ». Varr^, 1 C. M. ft R. 250 4\ii

vsvier^ow v, Dob^on, 30 Law Times 1^ 6 1 $

Wff^U p. Spratiey, 10 Ezch. 222 530, 632, 534, f rM

Weiunan 0. Ash, 13 a B. 836 4iU

Whitakcgr p. Sumper, 20 Pick. R. (American) 399 340, :.

TfWtep. Crifi^lOBwh. 312 . . ' 251, 7^/

miteleyn. Adams, 15 G.B.N. 8.392 808, .r.

Viutwpll p, Perrin. 4 G. B. N. & 412 29, .U

Wbyte.». Rose, 3Q.R493, 2GaleftD. 312 368, 3 ri

Wild Ranger, 32 Law J., A4m. 49 775

Wilki^s r. Aikin, 17 Ves. 442 456

\p}iams p. Adams, 2 Best ft Smith 312 738

-.^— ^ p. Allsupp, 10 G. B. N, S. 4i7 30 n.

r— r- »..HaU,6i)eGex,M'N.ftG.74 530

Wil^onr. Brett, IIM. ft W. 113 686

-^-7 .app.« Roberts, xesp., 11 G. B. N. S. 60. . . 697, 508, 510

-T— -.». Tooker, 5Bro.P.G. 193 706^708

M^ttiei? p. Reynolds, 2 B. ft Ad. 882 713

Wplverhampton New Waterworks Go. o. Hawksfoid, 7 G. B. N. 8. 795 811, 8J:2

Af 09d c. Lake, Sayer 3 739.

-^TT-u. Leadbitt^r, 13M. ftW..838 ....... 719,722

r. SutcUffe, 2 Sim. N. S. 163 456

^^toodsj;. Foote, IHoiast. ftGoIt.841 830, «at

WMdw^rd IV Lander, 6 G. ft P. 548 404.

Tggghtr. Woodgate, 2G.M. ftR.573,1^yr«|i.*a.ia- .... 430

Wpid IV Hopkins, 15 M. ft W. 517 . 160, Itf

-;.rr:-tvPickford,8M.ftW.448 S8^

lGft|«o.Fon^2WiQ«u6Mnd.l:l» f^

ZiriBKBf V. SbMnaOa, 7 Taunt 266, IJ. B. Mmm t2rlMi K. P. Q; 696 . m

TABLE OF STATUTES CITED.

BDWARD I. PAGB

3, c 14. Statute of Westminster 1 15

UENRY VI.
8, c 7. Qualification of county voter 47^

CHARLES II.

12, c. 24, sa, 1, 5. Copyholders 5dd, 562

^, c 3, s. 4. Statute of Frauds 532

SB. 4, 17. Statute of Frauds : signi^fKr* by im i^ttt • .599

WILLIAM III.
i^dblO, o. 15, s. 1. Sabmission to reference «;•.•• 373

OfiOftQE II.

3, o. 25, 8. 15. StrikinRspecial jury 198

14,0.43. Portsmouth Water Act 571

lt4, c. 78. Nortfaleach and Witney Roads AA 674

26, c 33. Marriage : Lord Hardwicke's Aet ?87

$2, c. c. Cromford Canal Act 726

36, c. 8. Statute of Mortmain 530, 534

GEORGE III.
32, c. 102. Portsmouth Improvement Act
43, c. 99, 8. 244. Horse-dealer: duty
53, c. 159. Shipregistiy Act

0. clxzxiv. Waterloo Brid^ Act
56, c. Ixiii. Waterloo Bridge Act

58, e. xxviii. Waterloo Bridge Act

59, c. 12, s. 7. Appointment of assistant-ovenie^r

. 571
. 737
. 33
236, n.
236, n.
236, n.
515, 516

GEORGE IV.
1 4> 2, e. etx. Nortfaleach and Witney Roads Aet 574

3, c. XX r. Bamsloy Improvement Act 264

4, e. 76. Marriage Act 783, n.

5, c 126) s. 73. General Turnpike Act : accounts 574

cw cxxxvii. Alliance British and Foreign Life md Fire Assuranee Act 203

•, a 16, s. 50. Bankrupt: setrOiT .848

s. 72. Bankrupt : order and dispositieii 674

10, c. Ixxiii., 8. 27. Croydon Improvinaent Aet 568

7 GEORGE IV. ^ 1 WILLIAM IV.

e.68; Carriers Act 586

(xxi)

xxii TABLE OP STATUTES CITED.

WILLIAM IV. PAGK

1, c. 22. Examination of witnesses abroad 849

1 A 2, c. 56, 8. 25. Bankrupt : yeoting of estate 670

2j 0. 45, s. 19. Qaalification of voter 563, 564

8. 26. Registration of voters 480, n»

8. 27. Registration of voters : qualification as tenant . . 488, 500

8. 36. Discjualification by alms 485

8. 47. Notice of objection . 540

2, c. xlv. St Leonard's Improvement Act 604

c. xci. 8. 71. Hastings Improvement Act : bathing . . < . 600

3&4, c. 15. Dramatic copyright ', license 811

c. 42, 8. 17. Writ of trial : new trial . . . . . . .457

c. 74, 8. 91. Conveyance of property by a married woman . . 833

5 & 6, c. 50, 8. 73. Highway : dedication of 221

obstruction on 743

0. 76. Municipal Corporation Reform Act 55

6 & 7, c. 32. Benefit society 468

c. 86, 88. 24, 47. Hackney Carriage Act : driver^s license • . 803

7 WILLIAM IV. & 1 VICTORIA,
c. 22. Lancaster and Preston Junction Railway Act . • • . • 744

VICTORIA.

I & 2, c. 110. 8. 102. Insolvent debtor : insane prisoner .... 567
5, c. 22, 8. 14. Queen's Prison Act : insane prisoner ...... 567

6 A 7, c. 18 8. 17. Notice of objection 539, 543

8. 23. Notice of objection 542

8. 74. Mortgagor 480

8. 101. Interpretation clause 516, n.

Amendment 548

^ 0. 85, 8. 18. Roman Catholic marriage 781

c. 86. Hackney Carriage Act 803

7 & 8, c. 110. Qualification of voters : members of joint-stock company . 518

c. 110. Joint-Stock Companies Act 58

8 A 9, c. 16, 8. 7. Companies Clauses Consolidation Act : shareholders . 527

c. 18, 88. 21, 68. Lands Clauses Consolidation Act : compensation . 726

0. 106, 8. 3. ' Void lease 720

c. 109. Gaming 316

9&10, c. 93. Lord CampbelPs Act 221

c. 95, 8. 58. County-court: title to land, &c 791

8. 128. County-court: concurrent jurisdiction . . . '616
c. dv. Ambergate, Nottingham, and Boston, and Eastern Junction

Railway Act. 1846 727

10, c. 15, 8. 21. Gas Clauses Act: penalties for fouling water . .. . 568

10 Jk 11, c. 14. Markets and Fairs Clauses Act 60

c. 14, 8. 32. Markets and Fairs Clauses Act, 1847 . . .275

c. 17. Waterworks Clauses Act, 1847 740

c. 34. Towns Improvement Clauses Act, 1847 .... 600
c. 89. Towns PoUce Clauses Act, 1847 .... 284, 600
c. cxxiv. Croydon Commercial Gas Act 568

II A 12, c. 43, 8. 5. Aiding and abetting or prooaring the commission of

an offence 3

3.63. Public Health Act, 1848 52,174,257

8. 189. Public Health Act, 1848 600

12 & 13, c. 106, 8. 171. Bankrupt: set-off 847

88. 178, 181. Bankrupt: execution 695

13^14,0.61,8.11. County-court: costs 620,622

8. 12. County-court: costs 791

c. 115. Industrial and provident societies 20

14 & 15, c. 98, 88. 1, 2, 13. Boaitl of health: provisional orders . . 600

15 & 16, c. 31. Friendly Societies Act 19

c. 54, 8. 4. Costs: concurrent jurisdiction .... 616,790

TABLE OP STATUTES CITED. xxiii

VICTORIA {continued). pagk

15 & 16, c. 76, 8. 2. Common Law Procedare Act, 1852 : appearance by

infant 474

B. 151. Common Law Procedare Act, 1852 : bail in error . 444
8. 222. Common Law Procedure Act 1852 : amendment . 463

16 & 17, c. 24. Public Health Act, 1853 .264

c. 96. Lunacy Act 567

c, 25, 8. 1 . Industrial and provident societies . . . .19
c. 31, 88. 1, 7. Railway Traffic Act, 1854 .... 582, 680

c. xzxiz. New River Company's Act 740

c. 104, 8. 504. Merchant Shipping Act: part-owner . 32, 102, 108

SB. 296, 297, 298. Merchant Shipping Act, 1854 : collision 774
0. 125, 8. 1. Common Law Procedure Act, 1854 : trial without a

jury .189

8. 17. Common Law Procedure Act, 1854: making sub-
mission a rule of court 375

17 & 18, c. 125, 8. 38. Common Law Procedure Act, 1854 : appeal, bail on, 442

8. 50. Common Law Procedure Act, 1854 : discovery . 809
8.51. Common Law Procedure Act, 1854: interrogato-
ries 839

88. 79, 81, 82. Common Law Procedure Act, 1854: injunc-
tion 450, 454

8. 68. Common Law Procedure Act, 1854 : mandamus . 173

18 & 19, c 120. Metropolis Local Management Act 233

c. 133. Limited Liabilit)r Act, 1855 58

19 & 20, c. 40. Industrial and provident Bociedes 22

0. 47. Joint-stock company : freehold interest . . 525, n. 532

20 ft 21, c. 14. Joint-stock company : freehold interest . . 525, n. 532

21 & 22, c. 98. Local Government Act, 1858 52, 257

23 & 24, c. xxxvi. Nottingham and Qrantham Railway and Canal Act,

1860 727

c. 125. Metrop^olis Gas Act 574

c. 151. Coal-mine regulations 3

24, c. 10, s. 15. Judgment of Admiralty Court 107

24 ft 25, c. 134, 88. 149, 180. Bankrupt: execution 'i95

8. 153. Bankrupt: Bet-off Ml

ss. 192,198. Bankrupt: deed of arrangement . . .815

25 ft 26, c 87. Industrial and provident societies 19

xxiv ABRIDGMBNTS, ETC.

ABRIDGMENTS.

PAGB

Baeon'tf Abridgment, Grants (H.) 75

Joint TenanU (L), 2 756

Libd(A.) * . . 410

Coiiiyn«*8 Digest, IM (A. 4.) 42

Grant m,U) 75

Action {K,l) 108

Action upon the eoMe/or Defamation (G, 5) . • • . 401

' Action upon the caiufar a AvtaoJice (A. 8) . . . .75
CWmin (D. 6) 235

' mortgage {J^,) 705

9nt,^fan« (G.l.

Yiaer's Abridgment, Copyhold (0.) 559

. X»2{AV2 410

Ro^le'fl Abridgments JV^faiM (G.)> pl- 2 *J^

^' ■ ' " ' 1(0.)

MAXBL
Omnia prsssumnntur rite esse acta • • 787, 788

RULES OF COURT,

Hilary, 2 W. 4, r. 74 623

Hilary Term, 1853, r. 7. Directions to masters ...... .447

r. 16. Delivery of papei^books . . . . 11 , n.

Micbaelmas Term, 1857. Paper-books on appeals from justices . . 11, n.

YEAR BOOKS.

11 H. 4, fo. 47 b 75

41 B. 3, fo. 24 b 7ft

GA.SES

• • •

ABQUED iO^B-pST^BMINED

• * * *

COURT OF C0Mm6N-'P..LEAS

', -• -'^
ASD ni vu ■ ,•'•••" •

EXCHEaUER CHAMBEfcvA

• - :. •

€tml\\ Jfaration,

TWENTY-FIWH AOT) TWENTY-SIXTH TBABS OF THB
BSIGN OF YIGTOBIA. 1863.

MEMORANDA.

The Right Hon. Sir Cresswell Cresswell, Knt., the first Judge Or-
dinar J of the Probate and Divorce Courts rformerly one of the judges
of the Court of Common Pleas), died on tne evening of Wednesday,
the 29th of July, 1868, at his residence, Prince's Gate, Knightsbridge.
His death was accelerated by an accidental collision whilst riding home
from court a few days previously.

On the 8d of September, 1863, the Hon. Sir James Plaisted Wilde,
one of the Barons of the Court of ♦Exchequer, took the oaths r^g
on his appointment as Judge Ordinary of the Probate and Di- *-
vorce Courts, in the room of The Right Hon. Sir Cresswell Cresswell,
KnI., deceased.

On the 3d of October^ 1863, Mr. Serjt. Pigott took the oaths on his
appointment as one of the Barons of Her Majesty's Court of Exche-

Juer, in the room of Mr. Baron Wilde, promoted to the office of Judge
rdinary of the Probate and Divorce Courts.

On the same day Sir William Atherton, Her Majesty's Attorney-
General, resigned his office.

Sir Boundell Palmer, Knt., Her Majesty's Solicitor-General, was
thereupon promoted to the office of Attorney-General : and Robert
Porrett Collier, Esq., one of Her Majesty's Counsel learned in the
tiaw, was appointed Her Majesty^s Solicitor-General.

MEMORANDA. T. V. 1863.

In the course of this vacation, William Henry Cooke, Esq., of the
Inner Temple, John Gray, Esq., of th^ -Middle Temple, John Joseph
Powell, Esq., of the Middle Temple,^tfnd -George Lock, Esq., of the
Middle Temple, were appointed HeKM^jesty's Counsel learned in
the Law. . ':**•.

^3, VOHNHOWELBS,/ Appellant; THOMAS WYNNE, Inspec-
-' tor of '•Ijjttrfes, Respondent. June 22.

B7 ft ipeeial rnle for tK{ regaUtion of ooRl-mines under the 23 k 24 Viet. e. 151, the buiki-
man ii directed to '^ If ke dwre that the personi deioending or aflcendiog the pit shall in no ease
exceed the number* (freight men and boys." A breach of these rules is bj s. 22 punishable on
summary conviel^oA.b^ fine and imprisonment

A., the cljarterci&aater of a pit (who by the rules is declared to be "the responsible manager
of the pi^ul(j^^is charge*'), was close to the pit, and was cognisant that more than eight men
were ^efn^Jawered down at one time, and had power to prevent the banksman (who is his am--
TanA) ifurt lo doing, and did not interfere : —

Her<}',«that A. was properly oonvicted of a breach of the regulations, as being a person "aid-
ing, abetting, or procuring the commission of the offence," within the 11 A 12 Vict. o. 43, a. &.

This was an appeal against a decision of jastices, pursuant to the
20 & 21 Vict. c. 43. ^
• The appellaftt is the charter-master at the Dark Lane Coal Pits, ^n
^ \ the Prij^rs Lee colliery, itf the county of Salop, and appeared before
the justices on the 24th of March, 1863, in obedience to a summons
issued upon an information laid by Thomas Wynne, Her Majesty's
inspector of coal-mines for the county of Salop, which information
charged that Bichard Bichards, late of Priors Lee, in the parish of
Shiffnal, in the said county, on the 29th of December, 1862, at the
parish of Shiffnal, in the said division and county, being then an(}
there the banksman of a certain coal-pit there situate, called the Dark
Lane Pit, belonging to the Priors Lee colliery, did then and there
permit and suffer more than eight persons to descend the said pit at
one time, to wit, that he did then and there allow twelve persons to
descend the said pit at one time, contrary to the 24th special rule then
in force for the regulation of the said colliery, established in pursu-
ance of the 23 k 24 Vict. c. 151, and that one John Howells (the ap-
pellant), late of Priors Lee aforesaid, being then and there the charter^
master of the said pit, was then and there present, and did then and
there aid and abet the said Bichard Bichards to do and commit the of-
fence aforesaid, contrary to the statute in such case made and provided.

The following is an extract from the special rules to be observed
in the Shropshire collieries, made in pursuance of the 23 & 24 Vict,
c. 151 :—
*41 *" ^^' ^^^ charter-master shall be the responsible manager of

-* the pit under his charge, or, in his absence, the underlooker or
fireman : and, if the charter-master shall have occasion to absent him-
self from the pit, he shall give previous notice to such underlooker or
fireman.

" 24. Every banksman or hooker-on is to give the proper notice or
signal to the engine-man to lower or raise the cages or baskets of coal,
and any person going down or up the pit : and he shall take care
that the persons ascending or descending the pit shall in no case ex-

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 4

ceed in number eight men and boys; and be shall forthwith give no-
tice to the charter- master, underlooker, or manager, of any person
who may disregard his directions."

On the 29th of December last, twelve men were killed at the pit in
question by the breaking of a^ certain apparatus used to attach the
cage (in which the men descend to their work) to the wire rope.

A man named Bichard Bichards was the banksman at the pit on
the morning in question. He allowed twelve men to get into the
cage, and gave the signal to the engine-man to lower them. They
had only proceeded a few yards when the apparatus broke, and the
men were precipitated to the bottom, a depth of 270 yards, and killed
on the spot.

An information was afterwards laid by Mr. Wynne against Bich-
ards for breach of the 24th rule above set out, to which he pleaded
guilty, and was sentenced by the justices before whom the case was
beard to two months' imprisonment, with hard labour.

Upon the hearing of the information against the present defendant
the following evidence was given : —

Thomas Wynne. "I am inspector of mines for this district
produce a certified copy of the rules applicable to all collieries ic
Shropshire. The pit at which *the accident happened whereby r^g
twelve men and boys were killed on the 29th of December last, ^
is in Shropshire. The rules are applicable to that pit."

Noah Chirms. "I am a collier. I recollect the morning of the
accident in Dark Lane Pit on the 29th December last year. I got
to the pit at 5.25 a. m. I could not see how many people were there.
When I got there, there were some; I cannot say how many; there
might be a dozen or so. I saw Bichards there : he was the banksman.
I saw the defendant there when I arrived : he is the charter-master.
We were all on the bank together. I recollect the first lot of men
going down. I was one of them : it went down some time about 5.80.
The defendant stood by the cabin door. The cabin is eight or nine
yards from the pit. I got to the pit five minutes before the engine
started. The cabin is almost close to the pit: it is not a large place.
I cannot tell how many men it would hold. Howells was outside the
cabin door when I got to the pit. I got into the cage with the first
band. The defendant was between the cabin and the pit when the
band started. We passed Howells as we got into the cage. I was
one of the last that got into the cage. Twelve of us were in the
cage. We went down safely. We all came up after the accident
occurred."

Cross-examined. *'It was dark, but there were lights on the bank
from the rodneys. Bichards was the banksman. I cannot say if any
one else was on the pit bank. Corbett was there. I do not recollect
him putting the bar in. Bichards put the bar in the end I was in:
some one put it in the other end. It was not dark'; but I was not
looking at the other end. I did not see what became of the defendant.
I did not see him at the pit-mouth doing anything after I passed him
in going to the cage. I cannot say how far he was from the door of
the cabin : three yards. ♦! did not see Parton or Whateley there, r^g
It is a round cabin. The door of the cabin opens a little on •-
one side of the pit : standing in front of the pit would be on the left-

e H0WELL8, App., WYNNE, RlsP. T. V. 1863.

band fiide, and formed ft sort of angle to the door. I have often beeii
in the cabin. Any one in the cabin and atai^og in the centre would
Bee the door."

Be-examined. ''It was light enon^h to see what was going on.
lliere were two fires on the bank. The Cabin door opetiB insid& If
I were standing in the cabin, with ray faee towards the pit, I should
be on the left side of the eabin« The cabin door is on the left side.
If I were standing in the centre of the cabin, with mj face towards
the shaft, the door would be on the left side. The cabin door was
open when I left it. It did not take me more than half a minute to
get from the cabin to the cage."

Thomas Corbett. '' I am a wheelwright, and work at the Lilleshall
Company's colliery. I remember the morning of the 29th of December.
I was at the pit. I got there about 6.50 a. in. I got there before the
first band went down. Noah Chirms, his father, Richards, and defend-
ant were there. Dabbs was there also. Wd had to Wait seven or eight
minutes before the first band went down. I do not know how. many
went down in it : there were a good lot : the cage vfka full. I put ono
bar in the cage. Richards put the other bar. Richards gave me one
to put in, and he put the other in. The defendant was in the cabin :
he came out before the band went down : he did not come out again
when I put the bar in. I cannot say h^ saw me put the bar in. I saw
Howells when I was going to take the bAr from Richards: he was
cC'ining from the cabin door towards the pit. I did not put the bar in
till the people were in. I did not see Howells come out of the cabin
^tr^ before the band started » *I was examined before the coronet ou

-I oath, and swore then that Howells stood by me when the first band
^f out down. It is true that defendant stood by me when the first band
went down. All I have sworn is right"

Cross-examined^ " It was a dark morning."

Re-examined. *'I did not count the men in the band. I can count
twelve. I am in the employ of the defendant, not of the company.
1 am the defendant's servant. I came with the defendant here to-day.
The defendant asked me to come : he did not tell me what he wanted
me to come for: his brother asked me to come. The defendant was
not present. I came with the defendant in a trap : his brother drove.
I did not sit by the defendant. I did not talk to him coming along.
1 cannot tell what time I got to Wellington this morning. I have had
some conversation with -Mr. Bartlett (Howells's attorney) as to the
evidence I was to give to-day. I saw him this morning."

The evidence for the defence was as follows : —

Isaac Whateley. " I am a collier, and am in the employ of Howells.
I work at the pit in question. I was working there on the 29th of
December. I remember the accident. On that morning I got to the pit
pit about 5.35 a. m. When I went firut to the pit, some of the men had
gone down in the first band. I went into the cabin, ttnd put my cap
on» Howells was in the cabin when I came up. Parton went into the
cabin when I went in. I was there when the accident happened. I
did nothing ; I sat down in the cabin. Spoke to Howells : we were
speaking about the coal. Howells did not go out of the cabin while
I was there : he was in the cabin when the accident occurred : he was
on the left side, and I was on the right. From where he stood in the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 7

cabin, he could not hare seen Hhe pit's mouth. It was a dark pg
Horning : we had the rodneys out." '-

John Parton. ''I recoHect seeing the defendant in the cabin.
When I went in, he was talking about the coal, I cannot say who
went in first, me or Whateley : we both went in the same time^as
near as I can recollect, Howells could not see the pit from where he
was standing. I can't tell what the people were doing when I went in.
The cage came up for the second band soon after I went in. I was
not there when the first band went down."

Joseph Dabbs. ''I am banksman at one of the pits in question.
I remember the morning of the accident. I came about 5 o'clock. X
remember the first band dl men going down. I was standing by my
cabin door : the two cabins adjoin one another, Howells came oat of
the cabin and saw Corbett : he turned into the cabin again, and there ho
remained till the first and second bands had gone down. Corbett assists
to send the men down when he is there. Howells could not see the
cage lowered. Hie cage was not drawn up when Howells went out
of the cabin. As soon as he saw Corbett, he went into the cabin
again. I saw Parton and Whateley go into the cabin : that was before
the accident, and after the first band went down."

Cross-examined. '' My pit is about ten yards from defendant's, ar <.l
is on the same bank, ^e same engine works both pits. That ca^^o
is at the bottom at night I got to the pit at 5 o'clock. I have a
cabin as well as the defendant. It is not usual to let more than eight
go down. I have knoi^n twelve to go down. The men are not loii.^
going down. Four bands will take my men down. Both cabins are
round. There is a blacksmith's shop between them : the shop is betwcy m
my door and the defendant's door. *Chirms went down in the r^^^
first band. I saw him get in. Howelld was in the cabin. Chirms ^
was nearer Howells than I was. I saw Corbett put the bar in. It is
an untruth if Chirms and Corbett swore the defendant was on f.he
bank when the first band went down. I was standing by my ca))in
door. There were a many people about the cabin. I saw HowoUs
turn into the cabin. I kept my eye on the door; and he did not come
out till the second band had gone down. The band went down
Howells's pit, and then down mine. When the band went down my
pit, I went to the catches to attend to them. I draw the catches myaelf.
While I was doing so, I could see the defendant's cabin. I could,
a^nd to my duty and watch what, defendant waq doing at the same
time. I had my eye on the defendant's pit ; my pit and the c^bia at
the same time. I can ati^end to the defendant's pit as well as mine.
I coulf} qee wjbat 1^(9 wm dplng at bis pHi and at the same time attend
Uy let my men down. I always look at the defendant's cabin door. I
watch that cabin door every morning. I will i^tswe^r I did not let
more thap. eight nc^^n dpwn (h^t mpxuipg."

CbarJp(^ Ovffifu '<X xoxn^ip^ber tia^ 29^b of Dqoamber. I went to
t)M» bailie vKhea. tbe &nit band wiaa jwt up, and ^t in« I did not see
Howells tb«t momiiig. Z ^o^ intp the first band. If SpwelU h^
beeii th^ro, I sfim b^?^ 8QQ» U^DU. I. Ifx^^. Tpm^ but. wj^ mff

Im X ^, Wiw 1)0 wmMH^^imt *^ ^^ of %h» pit^"

fiVnifiiflMniane^ << I w^m ^wn witb Ae fint band. I did Mi
know how many were im titl I earae up again. The cage was not

9 HOWELLS, App., WYNNE, Resp. T. V. 1863.

very full : they were most boys : there were above eight people. The
band was waiting when 1 got up. 1 ran and jumped in. Corbett was
*101 "^^^^'^S ^^ P*^* *'^® ^*^ ^^' When I passed Corbett, *he had

J the bar in his hand. T was at Kichards's end. I was in a
gr^t hurry to get down. I always lik^ to get down first. I was
late, and had to run for it. I live about three-quarters.of a mile fronn
the pit. I ran from the bottom of the bank. I did not run as hard
as I could : I did run. I did not take any notice if there were many
people on the bank. I cannot tell any one that was on the bank, or
who went down with me."

Alexander Jones. *' I am managing agent to the Lilleshall Company.
I know the two cabins. If a person was standing at the door of one
cabin, he could see a person going in the other cabin."

Cross-examined. '* The banksman could not keep his eye on the
defendant's cabin and attend to his own duties at the same time. After
he had sent down the band, he could look straight there. At the
same time he was sending the band down his own pit, if he were
attending to his duty he could not see what Howells was doing : he
could not see two ways at one time."

At the close of the evidence for the complainant, the defendant's
attorney contended that the 24:th rule did not make the charter-master
liable for the neglect of the banksman ; that there was no evidence
that the defendant was aiding and abetting; and that, in order to
justify a conviction, it should have been shown that he had done
some act or uttered some expression to identify him with the unlaw-
ful act Bichards was doing.

The evidence satisfied the justices that the defendant was close to
the pit ; that he was cognisant that more than eight men were being
lowered down at one time ; and that, under the 15th rule, he was the
person in charge of the pit, and had the power to prevent Bichards
(who was his servant) lowering the men down : and they therefore
♦in ^^^^^^^^ ^^^ under the *above information, and ordered him
-' to be imprisoned for two calendar months, with hard labour.

The question for the opinion of the court was, whether the evidence
above set out was sufficient to justify the conviction.

Hayes, Serjt., for the appellant, upon the case being called on,
objected that the respondent was not entitled to be heard, inasmuch
as he had not complied with the rule of court as to the delivery of
his paper-books to the two junior puisne judges, the appellant having
upon bis default duly delivered the whole of them.(a)

Wehby, for the respondent, — the argument having been adjourned

(a) Th« 16th rale of Hilary Term, 185S, 13 C. B. 8 (B. 0. L. B. toI. 76), proTides that "foar
dear daji before the day appointed for argament the plaintifT shall deliver copies of the
demurrer- book, special ease, special yerdict, or appeal ease, with the points intended to b«
insisted on, to the Lord Chief Justice of the Queen's Bench or Common Pleas, or Lord Chief
Baron, as the case may be, and the senior pnisne judge of the court in which the action is
brought ; and the defendant shall deliTcr copies to the other two Judges of the eourt next in
seniority : and, in default thereof by either party, the other party may, on f A« day following,
deliver such copies as ought to have been so delivered by the party making default : and the
party making default shall not be heard until he shall have pidd for such copies or deposited
with the master a sufficient sum to pay for such copies." And by rule of Michaelmas Terra,
1857, S C. B. N. S. 141 (B. C. L. B. vol 91), it is ordered that in " eases of appeal to a superior
oourt under the provisions of the statute 20 k 21 Viet. e. 43, the I5th and 16th rules of HUary
Term, 1853, so far as the same are applicable, shall be observed."

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 11

for the purpose, — produced an affidavit that the respondent's attor-
ney bad in dae time delivered the paper-books which by the practice
of the *court he was bound to deliver, to the judges' clerks m r^^^
their own room at Westminster. [Williams, J. — No doubt you ^
delivered your copies in due time. But the question is, whether they
were delivered at the proper place. That, I apprehend, is the judges*
Chambers.] The object being that the judges shall have the paper-
books, it is clearly enough if they are delivered to the clerks at
Westminster Hall. [Bylbs, J. — There is a record kept of what is ^
done at Chambers: but, if the paper-books are delivered to the clerks
at Westminster, it rests upon mere recollection. Willes, J. — There
must be a place of search to see if the rule has been complied with:
and where else can that be but the judges' Chambers?] It may
perhaps be reasonable to create a practice for the future. The rule
of court makes no mention of the place at which the paper-books are
to be delivered.

Williams, J. — The respondent's attorney has clearly adopted an
erroneous course. Our officers inform us that the proper place for
the delivery of paper-books, is the Chambers in Bolls Gardens. It
ha!) been truly said that no mention is made in the rule as to where
tl*'! delivery is to take place : nor is there any other direction therein
irfnin that the plaintiff shall deliver the paper-books to the Lord
Chief Justice and the senior puisne judge, and the defendant to the
two junior puisne judges, — not to their clerks. If the rule were to be
complied with literally, the paper-books might be delivered at the
judges' houses, or to the judges whilst riding or walking along the
streets. That would be manifestly absurd. There must ""be a usual
place for their delivery, where the opposite party may search whether
the rule has been complied with or not, in order that he may supply
the defect. The respondent's attorney being clearly in default, the
^appellant's attorney was justified in incurring the expense of p^^g
delivering the additional paper-books, and must be reimbursed. ^

Willes, J. — I do not think the rule of court is so defective as
Mr. Welsby suggests. The only proper place for the delivery of the
paper-books, is the judges' Chambers.

Byles, J. — If this were not so, it would make it necessary for the
attorney to search at two places, when there is only one place at which
any official record of the transaction is kept.

Welsby undertaking that the copies should be paid for, the argu-
ment was allowed to proceed.

Hayes, Serjt., for the appellant. — The offence with which the appel-
lant is charged is created by the 11 i 12 Vict c. 43, a. 5, which enacts
that " every person who shall aid, abet, counsel, or procure the com-
mission of any offence which is or hereafter shall be punishable on
summary conviction, shall be liable to be proceeded against and con-
victed for the same, either together with the principal offender, or
before or after his conviction, and shall be liable, on conviction, to the
same forfeiture and punishment as such principal offender is or shall
by law be liable to," &c. : and the charge is, not that the appellant
*' counselled and procured," but that he was present ''aiding and abet-
ting" the principal offender in the commission of the offence, which
makes him a principal in the second degree. The 11th section of the

13 HOWELLS, App., WYNNE, Rmp T. V. 1863.

Mines Regulation Act, 28 & 24 Vict c. 151, provides for the estab-
lishment of special rules for the guidance of persons acting in the
management of mines, and of persons employed therein : and the 22d
,H^-| section enacts that every *per8on (other than the owner or prin-
^J cipal agent or viewer) "employed in or about a coal-mine, col-
liery, or iron-stone min,e, who negleots or wilfully violates any of the
special rules established for such coal-mine, colliery or ironstone mine,
shall for every such offence be liable, upon a summary conviction for
the same before two justices of the peace, &c., to a penalty not ex-
ceeding 2?., or to be imprisoned, witb or without hard labour, in the
common gaol or house of correction for any period not exceeding
three calendar months." The oflfence here charged was committed by
Richards the banksman, as to whose duties there are various reguUv
tions in the special rules besides the 24th. [Byles, J. — ^The question
is, whether the appellant, who was the superior of Richards, is not
responsible for the offence of Richards, by reason of his abstaining
from using his authority to prevent its commission.] There is nothing
in the rules which requires the charter-master to see that the banks-
man does his duty. [Willes, J. — Do you dispute that there was
evidence to justify the conclusion of fact to which the justices came 7 ]
No. [Willes, J. — Then the question is, whether the appellant, vrhi
had authority, and whose duty it was to forbid Richards to send dowri
more than eight men and boys at one time, by standing by and not
inter'fering to prevent it, did not virtually, authorize and assent to the
illegal act of Richards.] Would the evidence sustain a charge of
manslaughter against the appellant? In Hale's Pleas of the Crown
438, it is said : "To make an abettor to a murder or homicide princi-
pal in the felony, there are regularly two things requisite. 1. ITe
must be present. 2. He must be aiding and abetting ad feloniam aiit
murdrum sive homicidium. If he were procuring or abetting, m'A
absent, he is accessory in case of murder, and not principal, unless Jfi
•151 ^^™® oases of poisoning. If he be present, and not *aiding \v
-* abetting to tho felony, he is neither principal nor accessor} "
This latter is precisely the case of the appellant here. He is presei- >
but does and says nothing. Aiding and abetting is something acti^«).
*'If A. and B. be fighting, and C, a man of full age, comes by chattse,
and is a looker on only, and assists neither, he is not guilty of murder
or homicide, as principal in the second degree; but it is a misprision,
for which he shall be fined, unless he use means to apprehend the
felon." [Willes, J. — The real question is, what was Howells's duty.
If it was nis duty to prohibit Richards from sending down the men
in violation of the 24th rule, and be did not do so, he was guihy of
the ofibnce. "Qui non prohibet quod prohibere potest, assentire
videtur."] No special duty as to the desoent of the cage is by the
rules imposed upon the charter-master : that duty is cast upon tbe
banksman. In The Queen v. Barrett, S2 Law J. M. C. 86; 9 Cox Cr.
Cas. 265, it was held, that, if a weekly teoatrt of a house use it as a
brothel, and the landl<H^ receive no additfonal rent by reason of the
immortl ooenpalian, the latter eamnoi be oonvided of keeping a bro*
tbel« mereljr beoause, baling notice of the nature of the oeeupatior
he-does not give the tenant notiee to quit. [)WiLLBS, J. — Lord Cokx,
oommenting ttpon tbe word^^de'* in tlie Statute of Westminster 1

COMMO]* bench report's. (15 J. SCOTT. N." S.) TS

(8 Ed. 1), c. 14, says,^ — 2 Inst. 182, — " Under this word is compre*'
hended all persons counselling, abetting, plotting, assenting, consent*'
ing, and encouraging to do the act, and are not present when the act'
is done; for, if the party commanding, furnishing with' weapon, op
aiding, be present when the act is done, then he is principal." A
permission, whether active or passrve, by a person having authority
to prevent the act beihg done, is iEi consenting. WiLLlAlfS; J.— ^In all
misdemeanors, an accessory before the fact is a principal. The ques--
tion is whether the facts stated in *this case could be regarded r^^o
by a jury as constituting Richards Howells's agent.] It is sub- k
mitt^ they could not, and consequently that he was improperly con-
victed.

Welsby, for the respondent, was not called upon.

Williams, J. — The question raised upon this appeal is precisely
the same as that which would have been raised for the consideration
of the judge, if this, instead of being an offeilce punishable on a sum-
mary conviction, had been made by the statute an indictable offence,
and the appellant had been indicted jointly with iRichards for an
offence which constituted a violation of the 24th rule referred to in
the special case. The question then would have been, whether, if the
facts here disclosed were laid before a jury, it would have been the
duty of the judge to stop the case, or to leave it to them to say whether
or pot they were satisfied from the evidence that the defendant aided
and abetted Richards in the commission of the offence with which
they were charged. I am satisfied that in the case supposed it wpuld
have been the judge's duty to leave the question to the jury. The
derendant is found to have been close to tha pit's mouth, and so cog-
nisant of the fact that Richards was permitting a larger number of
persons to descend at one time than is allowed by the 24th rule. He
13 the person who has charge of the pit, and who has power to pre*
vent Richards, who is his servant, from lowering down the cage so a^
to violate that rule. Having authority to prevent the illegal act
being .done, and having chosen to stand by and see it done without
exercising his authority, he might fairly be assumed by those who
are constituted the judges of the fact to have aided and assisted in the
doing of it. I think the justices weref *clearly warranted by r^^j
ihe evidence in coming io the conclusion they did. ^

WiLLBS, J.-^I am of the same opinion. ' The respondent has clearly
been guilty of a breach pf the discipline necessary to be kept up by
those who are an«wei*ab]e for the safety of tU^ nien. He wos present
when the bankpman let the men down: It was his duty to preVent,—
and he might have prevented, — the illegal aci, and he did not. I
think it is quite right to look to the most responsible persoti, and t<^
make an example of him, and so make it the interest of those who are
most open to the dread of punishment to prevent such ofiences from
being committed. - The act oE parliament would become a dead
letter if such evidence as this would not warrant a conviction.

Btlbs, J. — I am of the same opinion. In misdemeanors, all who
are present when the offence is committed, and have power to prevent
it, and do not exert that power, are equally guilty with him who ac-
tually commits the offence. It is plain here that the respondent had
power and it was his duty to prohibit Richards from doing as he did.

C. B. H. S., VOL. XV.— 8

n HOWBLLS, Apr, WYNNE, Risp. T. V. 186S.

The jofltioes find in tenns that the respondent was the master, and
that the actual offender was the aerrant. By standing by and seeing
ike ofience committed, the respondent afforded active encouragement
to the actual offender. The justices dearly came to a correct decision.

Appeal dismissed, with costs.

There was a second information against the same appellant, charg-
ing that he "on the 29th of Deeember^ 1862, at, &c.» being then and
there the charter- master of a certain ooal-pit there situate, called The
*181 ^^^^ "^Lane Pit, belonging to the Priors Lee Colliery, did not,
^ in the exercise of his duties as such charter-master, give his first
and chief attention to insuring the safety of the lives and limbs of the
persons under his charge, contrary to the 20th special rule then in
force for the regulation of the said pit and colliery," established pur-
suant to the statato.

The 20th rule is as follows: — *' Every charter-master and under-
looker, in the exercise of his duties, is hereby expressly ordered in
all oases to give his first and chief attention lo insuring the safety of
the lives and limbs of those under his respective charge, and to sus-
pend any or all operations attended with unusual risk, until he shall
have received special directions of the manager, and to atop the work-
ing or use of any pit, engine, ropes, machinery, or apparatus that may
not appear safe, until the removal of the danger."

The evidence was the same as in the former case ; and the decision
of the justices was as follows : — ^* The evidence in support of the in^
formation satisfied ua that the defendant was at the pit on the morn-
ing in question, that he knew a breach of the rules was being com*
mitted, and that he had the power to prevent it. We are also of
opinion, from the evidence, that the defendant did not give his first
and chief attention to insuring the safety of the lives and limbs of the
men under his charge, inasmuch as he did not suspend the operatiou
e£ lowering the men when he knew there were more in the cage than
the number allowed by the rules. We accordingly convicted the de-
fendant, and ordered him to be imprisoned with hard labour for two
calendar months, to commence at the same period as the former sen^
tence which had been passed upon him."

The question reserved for the opinion of the court, was, whether
(he evidence set out in the case, was sufficient to warrant the convic-
tion.

^j^^l ^Sayei, Sierjt, appeared for the appellant^ and Webby for the
^ respondent.

Williams^ J. — ^It follows from what the court decided in the last
ease, that the evidence in this case warranted the conclusion that the
appellant waa guilty of the offence charged in the second information*

Bylss, J. — ^The t^prilant was guilty of a plain breach of both the
UMi a^d 2Qtb rule. Appeal dismissed, without costs.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 19

DEAN V. HELLABD and Others. June 9.

By Um 17 A 18 Viet. e. 35, 1. 1, it itm inroridtd that all Mtloiia againtt aa/ looiatj ailab-
Bthad mndar the Indaitrial and Prorident Soeietiaf Aot» 186S (U & 16 Viot. o. 81), shaU he
eommeneed and proieeated against the regiitered oflieer of the loeiety, or agaimt the tnisteai
#ha« there U no re^tered offloer. These aeti #ere re^ealad hy the S5 A 19 Yiet e. 87, the
Hh aeetSoa of whieh providee thai <'the eertlieala of regiitraHon fhall TOit in the ipoiety aU
the property that may at the time he Tested in any peraon in trvft Ibr the soeiety : and aU
lagal proeeedingi Aem pending hy or agaioft any laoh trustee or other ofloer on aeconat
of the ioeiety, may he proseented hy or agatnit the soeiety in its registered name, withont

Held, that the offset of sneh repeal #u to rsnder tiie memhers indlrldiially liaUe to he sved
in respeet of a eontraet made hy the soeiety prior to the passing of the repealing aoty for whkh
no aetion was then pending.

This was an aetion bronght to recover the price of goods sapplied
by the {daintiff to a society called " The Kidgrore Industrial and
Provident Co-operative Society," of which the defendants were share-
boldei^ and committee-men, Mella^ being chairman of the commit*
tee. Plea, never indebted.

At the trial before Bramwell, B., at the last Spring Assises at Ches*
ter, it appeared that the society was established for the making and
selling of bread and other articles, of daily consamption to its mem-
bers and others ; that it was duly registered on the 26th of December,
1862, nnder the 25 & 26 Yict c 87; that there were two tmstees;
that the aflhirs of the society *were nnder the management of ^^aa
the committee; and that the goods in qneetion had been sapplied ^
in pursnance of a resolution of the committee, to which all the defends
ants were parties, and which was signed by the defendant Mellard as
chairman.

The goods were supplied in 1861 and down to July, 1862. The
25 & 26 Yict c. 87, passed in August^ 1862 ; and this action was com-
ttienoed in January, 1868.

On the part of the defendants it was eontended that the 16 k 16
Yict. c. 81 being repealed by the 26 k 26 Yict c. 87, the 18 & 14
Yict. c 116, s. IS, which vested the property of the society in Am
trasteeSy remained in force as to provident societies, and consequently
that the action riiould have been brought eith^ against the trustees
or against the society in its corporate character, under the 26 & 26
Yict c. 87, s. 6, which enacts that ''the certificate of registration shall
vest in the soeiety all the property that may at the time be vested iH
any person in trust for the society : and all legal proceedings ihm
fending by or against any silcfa trustee or other officer on account of
die society, may be prosecuted by «r agmist the soeiety in its regis-
tered name, without abatement."

The cases of Butler v. Tannahill, 5 Bllis & B. 797 (E. C. L. B. voL
85), and Myers v. Bawsoa, 6 Hurlst k N. 99, were referred to.

On the pari of the plaintiff it was insisted, that, by the repeal of ihe
fbrmer statutes by the 26 As 26 Yict c 87, All members of thede socie*
ties who but for such acts wotfld have been liable^ beoasie liable indi^
vidually ibr goods ordertdd hj^ them ; and thai the provision in th^
6th section of that aet ibr suing the soeleiy in its corporate name
aerely is permissive, m4 applies duly to proeesdhM then pending*

The learned judge dineeted a ttottsuiti reootfJug w plaintiff leave

(20 / DEAN i;. MELLABD. T. V. 18C3.

, — - ■ '»

,ft^-| to move to enter a verdict for 87Z. 65. 6rf. *if the court should be
-■ of opinion tljat the defendants were liable personally ; and also
on the ground that tliere was no sufficient evidence that there were
trustees, — neither party to appeal except by leave of the Court of
Common Pleas.

M^Intyre, accordingly, obtained a rule nisi, on the ground that
*' there was no sufficient evidence of the appointment of trustees, and
that, according to the true construction of the statutes relating to
friendly and provident societies, the defendants were under the cir-
cumstances personally liable to the plaintiff for the goods supplied."
[WiLLES, J., referred to Cockerell v. Aiicompte, 2 C. B. N. S. 440
(E. C. L. R. vol 89).]

Morgan Lloyd and Vaughan Williams now showed cause. — The
plaintiff was properly nonsuited. But for the 25 & 26 Vict. c. 87, this
action would clearly have been misconceived; for, it was held in
Burton v. Tannahill, 5 Ellis & B. 797, that an action for goods supplied
for the use of a society established under the 15 & 16 Vict. c. 31,
must, by the 17 & 18 Vict. c. 25, s. 1, be brought against the registered
officers of the society appointed to sue and be sued, where there are
such officers, and. it cannot be maintained against an individual
member of the society ; and in Myers v. Rawson, 5 Hurlst. k N. 99,
the Court of Exchequer pointed out that the only mode of obtaining
satisfaction from a member of the society was by a sci. fa. after a
judgment obtained against the registered officers or trustees, under
the 17 & 18 Vict. c. 25. It is clear, therefore, that, but for the recent
act, this action should have been brought against the trustees. The
title of the act is, ''An act to consolidate and amend the laws relating
to industrial and provident societies." It recites and repeals the 15 & 16

^22]

Vict.'c^Sl, the 17 & 18 Vict. c. 25, and the 19 & 20 Vict. c. 40.

By a. 2 it enacts that all societies tegistered under the Industrial
and Provident Societies Act, 1852 (16 k 16 Vict. c. 31), shall be entitled
to' obtain a certificate of registration on application to the registrar of
friendly societies : and s. 6 enacts that " the certificate of registration
shall vest in the society all the property that may at the. time be
vested in any person in trust for the society ; and that all legal pro-
ceedings then pending by or against any such trustee or other officer
on, account of the society may be prosecuted by or against the society-
in its registered name, without abatement.'' There is no express
provision for a case . like the present, where the goods are supplied^
before and the action brought after the passing of the act against:
individual members of the society. At the time the liability was
incurred, it was not oompetent to a creditor to sue the individuals : he
must have proceeded against the trustees. But it is said that the:
rcipeal of the former acts which fnilde it necessary to sue the trustees,
imposes a liability upon the members of the society who were not
Uable at the time the cause of actioo accrued. [Wjlliaxs, J. — ^It will
be said that the repeal of the former acts leaves the members as thejf
stQod at common law.] . No doubt :.but» assuming that the righi ^f :
aption lagainst the trustees is taken away bjr the 25 & 2^ Viot..o. 87, what
^ tb^re to impose a pco-aoiud UabUitj \ipo.n the individual members ?^
[WiLUAMS) J.— It Will be qaid that, it is a qaeatipo of procedure, nalt
of lia^bility.J It; {js sUVoiitt^ tfiat it iij moi^e.itban pjrQQedi;ire :: it:.'ia

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 22

imposiDg a liability which did not exist before, — which cannot be done
by an ex post facto law, unless there be express words. [Keating, J.
— All that can be said, is, that the individual members were formerly
privileged from being sued by some acts of parliament which have
*since been repealed.] No hardship is imposed upon the plaintiff, r^coo
fur the funds of the society may be got at by a proceeding in ^
equity, or by a winding up under s. 17.

M Intyre and Oriffits, in support of the rule. — ^^It is an improper use
of term;?, to say that the members of these provident societies were
not personally liable. They were always liaole ; but certain acts of »
parliament which are now repealed, regulated, whilst those acts
remained in force, the mode of proceeding against them. This is
clear from the judgment of Lora Campbell in Burton v. Tannahill.
The former statute was a restriction on the common-law right of
suing : that restriction is now removed. If the plaintiff were left tq
his remedy under the winding up act, his recourse against the persons
who contracted with him might be altogether gone. In Toutill Vi
Douglas, 8 Law Times N. S. 426, it was held that the trustees could
not be sued since the passing of the 25 & 26 Vict. c. 87, — Cockburn,
C. J., saying : *' The act of 1852 and the subsequent acts having been
repealed by the 25 & 26 Vict, which contemplated a new status foi*
these societies by making them incorporated, the rights and liabilities
of the societies under the repealed acta exist only for the purpose of
registration under the new act. It is impossible to say that the
repealed acts can any longer exist for the purpose of enabling them;
10 sue or be sued in the names of their officers." The plaintiff',
therefore, will be without remedy, unless he can maintain this action.

Williams, J. — I feel considerable difficulty in dealing with this
statute, because I am confident that the consequences which have
resulted were never contemplated by the legislature. But, lookii^g
at its terms, *and at the decisions which have taken place as r^^A
well before as since its passing, I think the rule to enter a ver- ^
diet for the plaintiff for the sum claimed must be made absolute. In
order to arrive at a satisfactory conclusion, it is necessary to see how
the law stood before the passing of the 25 & 26 Yict. c. 87| upoii
which the question arises. Creditors were then compelled to proceed
in the first instance by action against the trustees or other public
officers; but the individual members might ultimately have been
made liable by proceeding against them by scire facias, if the corpo-
rate fund were insufficient to satisfy the judgment.(a) It appears to
me that the legislature did not mean to interfere further with the
common-law liability of the members of. the society in respect of
contracts made by the trustees. Then comes the statute 25 & 26 Yict.
c. 87, the effect of which is to repeal the provisions of the former
statutes which compelled the creditor to take the circuitous course I
have pointed out, and leave it open to him to proceed against indi-
vidoat members as he might have done if those statutes had not

(a) The 11th •eeiion of the 15 k 16 Viet o. 81 enacted that "nothing in thia or the aaid
recited aet (the Friendlj Societies Act, 13 4 14 Vict o. 115) iball be eonatrued to restrict in
any wise the liability of the members of any society established under or by Tirtne of this act,
or elaiming the benefit thereof, to the lawfal debts or engagements of snch society : Proyidisd
always, that no person shall be liable for the debts or engagimenta of any snoh soeiety tiler
the expiration of two years from his ceasing (o be a member of the same."

24 DEAN V. MELLARD. T. V. 1863.

Eassed. The result is, that each individaal member is liable, and has
is remedy over against the others for oontribution. It has been
suggested, on the part of the defendants, that the statute 26 k 26
*251 ^'^^' ^' ^^ ^^^ ^^ intend to cast upon individual members a lia-
J bility which did not exist before, viz. of being sued ♦in the
first instance. That argument would have been admissible if the
legislature, instead of enacting, as they have done, in s. 6, that
"the certificate of registration shall vest in the society all the
property that may at any time be vested in any person in trust for
the society ; and all legal proceedings then pending by or against any
such trustee or other officer on account of the society, may be prose-
cuted by or against the society in its registered name, without abate-
ment," — had gone on to say that *' all claims and rights of action
existing at the time of the passing of the act " might be so prosecuted.
But they have not said so: they have confined the indulgence to
actions pending at the time of the obtaining of the certificate of regis-
tration. That must mean actions commenced before the passing of
the 25 & 26 Vict c. 87, because none could be commenced after against
any but existing members. But then it has been contended that the
trustees must still remain liable to be sued in respect of claims which
were existing before the act came into operation. The case of Toutill
V. Douglas, however, shows that no action for such a claim can be
maintained against the trustees. Although it does not appear from
the short statement of the declaration in the report of that case that
the cause of action was alleged to have taken place before the passing
of the 25 k 26 Vict. c. 86, yet the judgment of Cockburn, C. J.,
applies equally whether the cause of action accrued before or after
that act passed, inasmuch as the non-liability of the trustees was held
to be the necessary consequence of the repeal of the former statutes.
We cannot, therefore, escape the consequence, that no action will lie
against the trustees: the ordinary result, then, must follow, viz. that
we must look at the repealed statutes as if they had never existed,
and therefore the creditor is remitted to his common-law rights.
♦261 *W'iLLBS, J. — I am of the same opinion. I much regret being
-' compelled to eome to this conclusion, because it exposes indi-
viduals to liability to an action which they might fairly have supposed
eould only be brought against the general body of the society. But
there can be no doubt, when the acts of parliament and the clecisions
are looked at, that the direction to proceed against the trustees was
merely providing a mode of procedure which was equally for the con-
venience of the society and of its creditors, and not to take away the
liability of the members. But, looking at the 25 & 26 Vict. c. 87, and
seeing that it applies only to proceedings pending at the time of its
passing, I regret that we have no alternative but to say that the inter-
val, as to debts or claims which arose prior to registration under that
act, remains unprovided for.

KsATiNa, J. — I am of the same opinion. The efieot of the statutes
for the regulation of industrial and provident societies was, to compel
the creditor, for the mutual convenience of all parties, to have recourse
to the funds of the society, by suing the trustees before proceeding
(by scire facias) against the individual members. It was merely
opposing an obstacle to the procedure, and was not intended to afiect

COMMON BBNCH REPORTS. (15 J. SCOTT. N. S.) 26

the ultimate liability of the members c^ the societj. The effect of tbt
repeal of thoee statutes was, to remoye thoee obstacles, and to restore
the liability of the members to what it was at common law. Sharing
io the regret expressed by my Brother Willes, I reluctantly come to
the conclusion that the 6th section of the 26 & 26 Vict. c. 87 does not
include causes of action existing at the time of its passing.

Williams, J. — Although registered under the 25 & 26 Vict., it is
clear that the society could not have been "^sUed here in it& oor- r^^^
porate capacity, because the contract was entered into before the ^
society had any legal corporate existence.

Rule absolute accordingly.

Vaughan Williams^ for the defendants, asked leare to appeal, sug-
gesting that the matter was of considerable importance to these
societies.

M^Intyre opposed the application, on the ground that the amount
was small and the decision unanimous.

Williams, J. — We are at all times anxious that our decisions should
be subject to review. Bat I cannot say that this is a case in which we
ought to allow an appeal, especially as the amount in question is so
▼ery small. Leave to appeal refused.

BARKER V. HIGHLBY. July 6.

Tht tbtp'f hnaband, or mM»giDg owner, la m agent ftppolatDd by the other ownen to do
wbek is neoatsary to enable tbe tbip to proaeente her Toyage and earn freight

Where, therefore, the ihip's hnaband and nuinaging owner oaoaed a bail-bond to be gWen in
the Admiralty Court, in the namea of hii eo-owner and himself, in a snit for a eolllsion, and
the rait terminated in favour of the plaintiffii and the baU were ealled upon to pay dam*
agM, interest, and eosts :~Held, that the ee-owaer was retponalble to| the bail for the money

This was an action upon a bail-bond given in the Admiralty Court
in order to obtain the release of a vessel from arrest in a suit there for
collision.

The first count of the declaration was founded upon an implied
promise by the defendant to indemnify the ^plaintiff from loss r^og
by reason of his having, as surety for the defendant and one ^
Zachariah Charles Pearson, executed a bail-bond to secure the payment
(to the extent of the bond) of what might be adjudged against Pear-
son and the defendant, as owners of the screw steamship Wesley, in a
suit instituted against them in that court by the owners of the ship
Antelope.

There were also counts for money paid and for money found due
upon accounts stated.

The defendant pleaded never indebted, and to the first count a denial
of tbe promise therein alleged.

The cause was tried before Byles, J., at the sittings in London after
last Hilary Term. The facts which appeared in evidence were as
follows : — The defendant was a master mariner in the service of Pear*
son, then a large ship-owner at Hull, and was owner of two 64th shares
of tbe Wesley, Pearson being owner of the other sixty- two shares,
and acting as the managing owner and ship's husband. On the I7th
of September, I860, a collision took place between the Wesley and

28 BARKER D/HIGHLEY. T. V. 1863.

the Antelope, and the former vessel was arrested by virtue of process,
out of the Admiralty Court at the suit of the owners of the Antelope.
Highley being abroad, Pearson instructed Hargreaves, his broker, to
take the necessary steps; and accordingly Hargreaves, in order to
Qbtain the ship's release, procured Barker (the plaintiff') and one Cole-
man, to execute a bail bond as sureties for the owners for such sum.
i^ot exceeding 500Q/., as might b^ awarded against them in the Admi-
r.alty suit, with costs. Upon the bond being given the ship was
released, and afterwards she proceeded upon a voyage and earned
freight, of which the defendant received his proportion; and ulti^
mately, the vessel being lost, the defendant received 300Z. for his share
of the insurance-money.

*291 Judgment having been allowed to. go against the *owners.of
^ the Wesley in the Admiralty Court, damages, interest, and
costs were awarded against them to the amount of 211/. 45., and a
monition was served upon the bail requiring them to pay each a
moiety of that sum. The plaintiff having paid his moiety, and Pear-
son having become bankrupt, the plaintiff now sued the defendant.
, Hargreaves, the broker, who was called as a witness, stated that he
wa,s employed solely by. Pearson, and that neither he nor Barker
knew anything of Highley or had any communication with him,

On the part of the defendant it was submitted that Pearson had no
power to bind his co-Dwner by entering into such an engagement
without his consent or knowledge.

The learned judge overruled the objection, and a verdict was entered
for the plaintiff for 105t 125.; leave being reserved to the defendant
to move to enter a nonsuit or a verdict.

Denman^ Q. C, in Easter Term last, obtained a rule nisi, on the
ground that, under the circumstances proved at the trial, the plaintiff
was not entitled to recover, and that neither Pearson nor Hargcaves*
had authority to bind the defendant so as to make him liable for the
expenses paid by the plaintiff as surety. He submitted, that, inas-
much as the defendant could only have been made liable in the
Admiralty Court to the extent of the value of his interest in the ship,
his co-owner could have no implied authority to bind him for dama-
ges and costs which might far exceed that value: and he referred to
Sims V. Brittain, 4 B. & Ad. 375 (E. C. L. R. vol. 24), 1 N. & M. 694,
Myers v. Willis, 17 C. "B. 77 (E. C. L. R. vol. 84), 18 C. B. 886 (E. C.
L. R. vol. 86), Brodie v. Howard, 17 C. B. 109, Hackwood v. Lyall, 17
C. B. 124, Mitcheson v. Oliver, 6 Ellis & B. 419 (E. C. L. R. vol.
85), and Whitwell v. Perrin, 4 C. B. N. S. 412 (E. C. L. R. vol. 93).

30]

^Montague Smithy Q. C, and Hannen, showed cause. — The

question is, what is the extent of the authority of a part owner
of a ship, who is also managing owner and ship's husband. That
question must be decided by reference to general principles and to
analogous cases. That which it is necessary to do for the joint benefit
must clearly be within the power and authority of the managing owner :
and here it was necessary, in order to enable the ship to earn freight,
that she should be released ; she was released by means of this bond, and
she earned freight, his proportion of which the defendant received. The
authority is thus stated in Abbott on Shipping, 8ih edit. 105, 10th
edit. 72, — ^^''It is usual fpr the several part owners to appoint a person,

COMMON BENCH REPORTS. (16 J. SCOTT. N. S.) 30

frequently one of their own number, to be the manager of their joint
concern, their general agent in the use and employment of the vessel,
under the name of the ship's husband. His duties and powers as
sach are often defined and limited by the terms of a special agreement
for that purpose between him and his employers or co-owners. Where
no such agreement has been made, he is to exercise an impartial
judgment in the employment of tradesmen and the appointment of
officers, and be careful that his choice in the selection of a master be
not biassed by any private pecuniary transaction. He is to see that
the ship is properly repaired,(a) equipped, and manned,-^to procure
freights or charter-parties, — to preserve the ship's papers, — to make
the necessary entries, — adjust freight and averages, — disburse and
receive moneys, and keep and make up the accounts as between all
parties interested. His acts for these purposes are considered to be
the acts of all the part owners, who are liable on all contracts entered
into by him for the conduct of their *common concern, — the p^gi
employment of the ship." '* But one part owner, though he be *-
also managing owner, cannot, by ordering an insurance of a ship
without authority from another, charge the other with any part of the
premium, unless the other afterwards assent to the insurance, because
this is no part of the joint concern ; a share in a ship being the distinct
property of each individual part owner, whose own affair it is to pro-
tect it by insurance. So, one part owner, although he be the husband,
cannot as such pledge the other to the expenses of a lawsuit." The
rule is similarly stated in Story on Agency, §§ 40, 41, and in Story
on Partnership, pp. 581, et seq. In Bell's Principles of the Law of
Scotland, p. 449, it is said : " The ship's husband is the agent or com-
missioner for the owners. He may be a part owner or a stranger.
His powers are by mandate or written commission' by the owners, or
by verbal appointment ; the latter chiefly where he is also part owner.
His duties are, — 1. To arrange everything for the outfit and repair of
the ship, — stores, repairs, furnishings; to enter into contracts of
affreightment: to superintend the papers of the ship, — 2. His powers
do not extend to the borrowing of money ; but he may grant bills for
furnishings, stores, repairs, and the accessary engagements, which
will bind the owners, although he may have received money where-
with to pay them, — 3. He may receive the freight ; but is not entitled
to take bills instead of it, giving up the lien by which it is secured, —
4. He has no power to insure for the owner's interest without special
authority, — 5. He cannot give authority to a law agent that will bind
his owners for expenses of a lawsuit, — 6. He cannot delegate his
authority." If Pearson had paid this money, he might have charged
it in the accounts of the ship. In Whitwell v. Perrin, 4 C. B. N. S,
412 (E. C. L. R. vol. 93), necessaries were *furnished to a ship r^go
on the order qf the ship's husband (himself a part owner), by ^
whom alone the ship was managed: and it was held that the co-
owners were liable, although part of the supplies had been paid for
by bills drawn by .the ship's husband upon the brokers of the ship,
and, on the bankruptcy of the latter, the plaintiff had proved against
ibeir estate fur the balance. [Williams, J., referred to Preston i^.
Tamplin, 2 Hurlst. & N. 684.] In Rich v. Coe, Oowp. 636, 639^

(a) Bm WiUiami v. AUiap, 10 C. B. N. S. 417 (E. C. L. R. toI. 100).

BARKER V. HIGHLET. T. V. 1863.

Lord Mansfield said : " Whoever supplies a ship with necessaries has
a treble security, — 1. The person of the master, — 2. The specific ship,
-^. The personal securitj of the owners, whether they know of the
supply or not. The master is personally liable, as making the con-
tract The owners are liable in consequence of the master's act,
because they choose him : they run the risk, and they say whom they
will trust with the appointment and office of master." Here, the
defendant trusted Pearson to do all that was necessary for the employ-
ment of the ship: and the employment of Hargreaves by Peairson was
no delegation of the authority intrusted to him.

Denman, Q. C, and Uihvard^ in support of the rule. — Whatever
might have been the general authority of Pearson as ship's husband,
he clearly had no right to assume that the defendant would intervene
in the suit in the Admiralty Oourt ; and there was no necessity for
making him intervene so as to become liable for the damages and
costs. A part owner of a ship is not necessarily a partner : Helme r.
Smith, 7 Bing. 709 (E. C. L. R. vol. 20), 5 M. &. P. 774. As
between the part owners, each is only liable to the extent of his own
interest in the ship. His liability in cases of this sort is similarly
limited by the 604th section of the Merchant Shipping Act, 17 k 18
«ooi ^i<3t. c. 104. That section is ^substantially a re-enactment of
•' the 1st section of the 63 G. 8, c. 169, which was under discus-
sion in Ex parte Rayne, 1 Q. B. 982 (E. G. L. R. vol. 41). This clearly
is not an ordinary incident to the authority of a ship's husband : it
was just as much out of the course of the ordinary duty of a ship's
husl^nd as was held the instituting a suit for salvage in Campbell v.
Stein, 6 Dow 116. A ship's husband has no power to insure unless
by the authority of his co-owner ; French v. Backhouse, 6 Burr. 2727 ;
or for repairs which are not necessary: Chappell v. Bray, S Law J.
Ezch. 24. So, one partner has no authority to bind his copartner by
a reference to arbitration (Hatton v. Ro^le, 8 Hurlst. k N. 600), or
by consenting to an order for judgment in an action against himself
and his copartner : Hambridge v. De la Grou^, 3 G. B. 742 (E. G. L.
R. vol. 64). [Williams, J. — Suppose a ship bound on a voyage under
a heavy penalty comes into collision with another and slightly damages
her, and, the ship's husband declining to give bail, the voyage is lost,
-^would not his co-owners have a right to call upon him for compen-
sation 7] It is submitted that they would not. That which was aone
here was clearl v beyond the scope of a co-owner's power and authority.
One of several partners cannot bind his copartners, without their
consent, by giving a guarantee, or a cognovit, or by entering an
appearance to an action. [Williams, J. — ^This is put upon the ground
of necessity.] Our. adv. vuk.

Williams, J., now delivered .the judgment of the court :(a) — The
defendant in this action was part owuer of a vessel which had been
arrested in the Admiralty Gourt, in a suit for collision. The defend*
ant held two sixty-fourth shares only ; the other co-owner held the
*S41 *^^™^^°^"8 sixty-two sixty-fourth shares, and acted as ship's
J husband and managing owner. The latter, in order to obtain
tbe release of the ship, procured the plaintiff and another person to
become bail for the ship in the Admiralty Gourt, and the ship was

(a) The OAM wti arguod bofora ErU, C. J., WiUUmt, J., WUiw, J., aad Bjlei, J.

COMMON BBNCa BEPORTS. (16 J. SCOTT. N.S.) 34

therenpoiji released. The suit terminated in favour of the owner of
the injured vessel. The mana^inff owner of the defendant's vessel
became bankrupt, and the ship itself was afterwards lost The bail
having each paid their proper share of the money due on the bail-
bond, the plaintiff as one of them sued the defendant in this action to
recover his proportion of the monej so paid.

At the trial before Byles, J., the plaintiff obtained a verdict ; but
leave was given to the defendant to move to enter a nonsuit.

The ship's husband, or managing owner, is an agent appointed by
the other owners to do what 'is necessary to enable the ship to prose-
cute her voyage Und earn freight In this case it was absolutely neces-
sary to release the ship from the Admiralty process, — as necessary as
it would have been to employ salvors, had the vessel taken the ground
and been in danger of destruction ; in whidi case the salvors, in addi-
tion to the security afforded by their maritime lien, might have
brought an action against the owners : Newman v. Walters, 8 B. &
P. 812.

We think the managing owner was not bound to deposit money out
of his own pocket, or to mortgage his own shares, or to hypothecate
the ship ; but that he might do what was necessary according to the
rales of the Admiralty Ck>urt. Those rules enabled him to obtain a
release of the ship by merdy procuring bail for damages and costs.

The hardship on the present defendant is undoubtedly great ; but
that arises from the facts that he was owner of so small a portion of
the ship, and that he has lost his remedy against the co«owner by that
^oo-owner's bankruptcy, and against the ship by its subsequent ^^^^

We are therefore of opinion that the rule to enter a nonsuit should
be discharged. Bule discharged.

KIDNER V. KEITH. June 19.

▲ d«ed (whioli by MTaogcntnl wm Io b# ezaontoi in daplioata, od« to be pnpftred by tMh
patty sad to be interchanged between tbem) was eieonted by tbf grantee, bnt not atteited,
and was by him ieat to the solicitor of the grantors to procure their execution ; and they
aeoordingly signed, sealed, and delirered It : — Held, that this was a eonplete dellTery, whereby
the estate passed ; and that the ahere arraogtPMt did not ifndar the deed aa eserow vntil the
dnplieales were interchanged*

This was an action of replevin. The defendant avowed that one
William Pratt, during all the time for which the rent thereinafter
mentioned to be distrained for accrued due, and thence until and at
the time of the alleged taking of the said goods, held the said dwell
ing-house and premises in which, &c., as tenant thereof to the defend
ant under a demise thereof at the yearly rent of 761. payable quar-
terly, on, &c., in every year, by even and equal portions ; and because
166/L 16b. of the said rent at the time of the alleged tiding was due
and in arrear from the said William Pratt to the defendant, he the
defendant well avowed the taking, &a Plea, non tenuit. Issue
thereon.

The cause was tried before Wightman, J., at the last Spring Assizes
at Kingston, when the learned judge directed a verdict to b^ entered
for the defendant, with liberty to the plaintiff to move to enter a ver**

m KIDNER r. KEITH. T. V. 1863.

diet for him, — the court to draw any inference of fact from the evi-
dence, which was in substance as follows: —

By indenture of lease of the 22d of April, 1816, between John
Young of the one part and James Bush of the other part, the premises
in question were demised to Bush for fifty-seven years and a half from
the 25th of March then last preceding, subject to the rents and covcv
Slants therein mentioned. By divers rhesne assignments the premises
♦361 ^^^ become and were, on and prior *to the 19th of July, 1830,
-^ vested in one Alexander Macdougall for the residue of the term.

By indenture of assignment of the 19th of July, 1880, between
Macdougall of the one part and Henry John Keith (the defendant) of
the other part, Macdougall, in consideration of 4252. paid to him by
n. J. Keith, assigned to him the premises in question for the residue
of the term, subject to the rent and covenants contained in the inden-
ture of lease of the 22d of April, 1816.

By indenture of settlement of the 28tb of February, 1831, between
H. J. Keith of the first part, Mary Keith (the mother of H. J. Keith)
of the second part, and G. C. Keith, Mary Eliza Brooks (then M. E.
Snook, formerly M. E. Keith), and H. J. Keith of the third part, —
after reciting, amongst other things, that the said sum of 4252., the
purchase-money for the said premises expressed to be paid by H. J.
Keith, was the proper money of Mary Keith, and that in the purchase
thereof he was acting aa a trustee, and that Mary Keith was desirous
that the premises should be held upon the trusts therein mentioned, —
it was covenanted, declared, and agreed that he (R. J. Keith), his execu-
tors, administrators, and assigns, should stand possessed of the pre-
mises so vested in him as aforesaid, upon trust to pay the rents and
profits thereof to Mary Keith during her life, for her own separate
use, and, after her decease, that the premises should be h^ld upon trust
in equal shares for the said G. G. Keith, M. E. Snook, and H. J. Keith.

This deed of the 28th of February, 1881, was a family arrange-
ment: but the recital therein that the 4252. was the proper money of
Mary Keith was erroneous; it having in fact been part of the estate
of John Keith, her late husband, who had died intestate, leaving Marv
^oyi Keith,- his widow, and H. J. Keith, *G. 0. Keith, and M. E.

-' Snook, his only children, and sole next of kin.
' In 1854, Mary Keith, wishing to get rid of the deed of the 28th of
February, 1831, and to have the premises in her own power, applied
to H. J. Keith to assign them to ner absolutely, which he agreed to
do ; and an indenture was accordingly prepared for that purpose and
endorsed on the indenture of assignment on the 19th of July, 1830,^
assigning the same to her absolutely. This indenture'was signed by*
H. J. Keith, but was neither dated, attested, or delivered, the solicitor
to Mary Keith, who had prepared the deed in ignorance of the prior
settlement, at the moment of the execution^ hearing of the prior trust,
told him that it would therefore be valueless. Mary Keith, however,
received the rents down to the time of her death, which took place on
the 8th of December, 1855. She bad previously made a will, where-
by she bequeathed all her property and effects to Joseph Partridge,.
William Dunk, and M. £. Brooks, upon trust to divide the rents be-
tween H. J. Keith and M. £. Brooks (G. C. Keith having previously
died) during their lives, and upon trust as to the corpus for the survi-

COMMON BENCH REPORTS. (13 J. SCOTT. N. S.) 87

tor. The will was proved by M. E. Brooks and Partridge, Dunk
having resigned.

Prior to her death, viz., in January, 1855, Mary Keith granted a
lease of the premises for eighteen years to William Pratt, under
whom the plaintiff claimed. The validity of this lease was contested
in an action of ejectment between H. J. Keith and William Pratt)
which was tried at the Summer Assizes for Surrey in 1861, and its
validity established by the decision of this court upon a rule to set
aside the nonsuit.

In 1858, an arrangement was entered into by the members of the
family, whereby the executrix and executor of Mary Keith were to
assign over tlie lease granted in January, 1855, to the defendant as a
trustee for the different members of the family in certain *pro- r^og

Sirtions ; and a deed of mutual release and assignment, dated ^
ay the 5th, 1858, was prepared, whereby the lease was reassigned
to the defendant, subject to Pratt's underlease. This deed also con-
tained covenants by the defendant to indemnify the grantors from the
future performance of the covenants of the lease.

In 1859, a bill was filed by the widow and administratrix of G. G.
Keith (and her then husband J. G. Hairby), claiming a third of the
rents of the premises in question, and praying that the deed of 185-1
might be declared invalid ; and b^ a decree dated the 5th of Novem-
ber, 1860, this deed was declared inoperative, and it was also declared
that H. J. Keith was a trustee of the property under the deed of the
28tb of February, 1831. No notice, however, was taken of the lease
of January, 1855.

The main question between the parties was, whether the deed of
the 5th of May, 1858, had been delivered as a perfect deed, or only as
an escrow ; and this depended upon the evidence of Mr. Withall, who
acted as the solicitor of Mrs. Keith's executors on the occasion.

Upon his examination in chief, Mr. Withall stated that the deed
was duly signed, sealed, and delivered by Mr. and Mrs. Brooks and
by Partridge, the co-executor, in his presence ; that the deed had bqen
sent to him for execution by his clients, signed by the defendant, but
unattested. He also stated that the executors had received from Pratt
rent accruing after Mary Keith's death, and that six months after he
paid 88/. Is. Id. to the defendant.

On cross-examination he said : *' The deed of 1858 was to have been
in duplicate, one to be kept by the defendant and the other by the
executors of Mary Keith. I had sen^ the duplicate to the defendant
.to be executed by him and exchanged for that executed by the ex^-
cutors.(a) Part of the arrangement was, that the *deeds should r«og
be exchanged. I never did apply to the defendant for his dupli- V
cate. A year after, I was callra upon to deliver up the deed to. the
defendant. The defendant refusea to carry out the arrangement, as
he would not recognise Pratt as tenant. I have received the rent
from Pratt down to Midsummer, 1858, inclusive, and have paid it one
moiety to the defendant and retained the other for the executors."

Lush, Q. G., pursuant to the leave reserved t6 him, in Easter Terui
last, obtained a rule nisi* to enter a verdict for the plaintiff for 42. 4s.,
on the ground " that no assignment of the premises was made to Uie

- ,. (a) TbedMdlnqiiMkioiLWMthiidiipItoAto. . v

KIDNKR V, KEITH. T. V. 1863.

defendant by tbe alleged indenture of tbe 6th of May, 1868, the deed
haying been executed as an escrow." He referred to Johnson v. Ba**
ker, 4 B. & Aid. 440 (E. C. L. R. vol 6), and Bowker v. Burdekin,
IIM.&W. 128.

Philbriek showed cause. — The question is, whether the deed of the
6th of May, 1858, was' delivered so as to be a complete and valid
deed, or whether it was delivered as a mere escrow. The question
arose before this court in a former case of Keith v. Pratt, when the
court held that there was a constructive delivery, and that Keith was
estopped from disputing the lease. Tbe facts are nutnerous and some-
what complicated ; but the point they result in is, — was the deed of
the 6th of May, 1868^ executed and handed over by Keith to Mr.
Withall, and afterwards executed by the executors of Mrs. Keith, a
perfect transaction? It appears from the etidenoe of that gentleman,
that the deed was to have been in duplicate, one to be kept by the
defendant, the other by the executors of Mrs. Keith ; that one was
executed by the defendant and sent to Withall for execution by the
executors, and thev both signed, sealed^ and delivered it in his pre*
^ . Q^ sence ; and that Withall sent a duplicate to the defendant, to be
^ ^executed by him and exchanged for that executed by the exe-
cutors, it being part of the arrangement that the deeds should be ex-
changed ; but that he never applied to the defendant for his dupli-
cate. The executors kept and still keep tbe deed so executed by
them and by the defendant. [Williams, J.-^If there was a perfect
delivery, but upon coafidenoe that the deed would not be acted upon
until the duplicates were exchanged, the estate would pass. In the
ordinary ca&re of a deed executed and left with the party*s attorney,
unless it is delivered to the attorney as «n eserow, not to be delivered
until the consideration-money is paid or some other condition per-
formed, it operates as a perfect deed.] The fair result of all the cases
is, that no fornml words are necessary to constitute a delivery as an es-
crow : Murray v. The Earl of Stair, 2 B. & G. 82 (E. C. L. R. vol. 9\ 8
D. k B. 278, and the authorities tiiere cited. In Sbeppard^s Touch-
stone, p. 68, the learned author, having shown that delivery is essen*
tial to the validity of a deed, proceeds to describe what is a delivery
as an escrow, — " The delivery of a deed as an escrow is said to he
where one doth make and seal a deed, and deliver it unto a stranger
until certain eonditiona be performed, and then to be delivered to him
to whom the deed is made^ to take effect as bis deed. And so a maa
may deliver a deed, and suoh a delivery is good." Tbe editor (Ather-
ley) adds in a note,-^''The delivery of a d^ may be either absolute^
as by delivering it to the grantee himself or to some third person for
him without any condition or qualification ; cfr it may be eondittoiml,
as a delivery to sonse third person to keep till some act is done by
the grantee ; in which case it is not delivered as a deed, but aa aa
escrow, that, is, a sorowl or wviting which is not to take effidct or to
operate as a deed till the aet required to be done by tbe grantee is
actually performed." Here there was no oondttion to be performed
*411 ^^ order *to make this a perfaot deed. It was executed by all

^ the parties, and was intended to be an operative deed ; and it
waa not the less so beeause the duplicate was not handed over. It
was a perfect deed upon tbe face of it ; and the arrangement spoken

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 41

of by Mr. Withall waa a mere collateral and ancillary agreement,
which could not operate to defeat the assignment or to prevent the
estate passing. This deed was not an escrow within the above defi-
nitions.

Walkin William^ in support of the rule. — The defendant appears
to have signed one part of the deed. There was no evidence that he
ever delivered it It was the part of the deed which was to be kept
by him. The executors signed, but they never handed it over. The
rule upon the subject of the delivery of a deed as an escrow, is well
laid down in Gudgen i7. Basset, 6 Ellis k B. 986 (E. G. L. R. vol. 88).
There, G. having let premises to P. for a term of years, P. paying 100?.
for the fixtures, a lease by deed was prepared and engrossed on parch-
ment B. paid down only 602. It was agreed between G. and P. that
P. should be let into possession as tenant from year to year on the
terms of the intended lease until he paid the balance of the 1002. At
the same time 6. signed, sealed, and delivered the deed, which how*
ever be retained in his own possession. No third person was present.
No words qualifying the delivery, or expressly stating that it was as
an escrow till the payment of the balance, appeared to have been used.
G. brought use and occupation against the assignee of P.'s interest ;
and, on these facts appearing at the trial, an objection was taken that
the action ought to have been on the covenants in the deed. It was
held that the circumstances warranted an inference in fact that it was
agreed by both G. and P., at the time of the execution of the instru*
ment, that it should not operate as a lease until the payment ; and
*that, if there was such an agreement by both, though no express r^^o
words of delivery as an escrow were used, it would not operate '-
as a deed till then, and consequently P. was tenant from year to year
under the terms of the instrument, and not tenant under a deed ; and
that use and occupation would lie against him or the assignee of his
interest(a) [WiLLXS, J. — That is nothing more than is said in
Gomyns's Digest, Fait (A. 4.): " If a man throws a writing on a table
and says nothing, and the party takes it, this does not amount to a
delivery, unless it be found to lie put there with intent to be delivered
to the party."] In Bowker v. Burdekin, 11 M. k W. 128, it is laid
down by the Court of Exchequer that it is not necessary that the
delivery of a deed as an escrow should be by express words; if, from
the circumstances attending the execution, it can be inferred that it
was delivered not to take effeet as a deed until a certain condition
were performed, it will operate as a delivery as an escrow only.
[WiLUAMS, J.~Millership v. Brookes, 6 Hurlst. k N. 797, as far as it
goes, is in your favour. It was there held that an indenture sealed
and delivered to an attorney who is acting for all the parties to it,
with directions that it is not to take e£feot till something else is done,
operates merely as an escrow. I can very well understand that this
deed should not be intended by the exeeiUars to be binding until exe*
euted by the defendant.] The arrangement was, that each party was
to prepare and execute one part, and then exchange them.

W iLLiAKfl^ J. — I am of opimoa that this rale should be discharged.

(a) Lord CampbeU tbera Mjt :~"I dioald ttttcb bo weight whatoTor to what tbo grantor
■^ht Uiink or Intind: wbon ho doUTond th« InftMmont, naloM t Chooght that It waf iotoiidod
■liagfood If hotkpvHmihU tba ialivtiy ihonld opaf aU oaly aa tha dallraij of an OMfowJ*

42 KIDNER r. KEITH. T. V. 1863.

*431 '^^® question raised, when closely *Iooked at, will be found to
■! be a mere question on the evidence, which, by agreement of the
parties, we are to decide, instead of a jury. There is no doubt in
point of law, that, where, by express declaration or from the circum*
stances, it appears that' the delivery of a deed was not intended to be
absolute, but that the deed was not to take effect until some contem-
plated is vent should have happened, the deed is not a complete and
perfect deed until that event has happened. The question is, whether
that principle can be brought to operate here. It seems to me that it
cannot. If the facts had been, that the defendant had never executed
the deed, and that the delivery by the grantors, though apparently an
absolute delivery, might be looked upon as a delivery dependent upon
the subsequent execution of the deed by the defendant, the case might
have deserved consideration. It might then have been contended that
the deed was never intended to take effect until the defendant had
executed it. But here it appears that the deed was executed by the
defendant ; and the only question is, whether the execution and de-
livery by the grantors was conditional on there bein^ a duplicate of
the deed. That there was an arrangement that the deed should be
executed in duplicate, there can be no doubt. But the question is,
whether it was to be a condition. There seems to me to be no reason
why we should infer that the delivery by the grantors was to be
dependent on a condition that a duplicate should be executed by the
defendant. The circumstance of the deed being executed in duplicate
in no way affects the position of the parties. The execution of the
single deed fully carries into effect the intention of the parties and
passes the interest. The execution of a duplicate merely facilitates
the evidence. It seems to me that we should be doing what the par^
ties never intended, if we were to hold that the execution of a dupli-
#441 ^^*® ^^^ ^ condition *which was to suspend the operation of the
-^ deed until it was performed. The non>delivery of a duplicate
would be merely a breach of an agreement, and not a non-performance
of a condition.

WiLLES, J. — I am of the same opinion. The only question is
whether the arrangement spoken of by Mr. Withall on his cross*
examination show^ that the deed was delivered upon a condition
which was not performed. The statement is that there was an arrange-
ment between the parties that the deed was to be executed in dupli-
cate and exchanged. But, for the reasons given bv my Brother Wil-
liams, I think it is clear that the execution of the duplicate by the one
party was not made a condition to the operativeness of the deed. No
oenefit could result to the executors from that. The object of the
deed was to rid them of trouble, to undo what had been done by th^
deed of 1854. There can be no doubt that they were well advised in
executing it. Their interest and their intention were to have done
with the lease. The assignment to the mother was a breach of trust
She was not a purchaser for value, and could not have set up an^
right against the settlement of 1881. Her executors could derive no
tiepefit from the assignment, and oonld only expect -to be proceeded
against in. Chancery if they made any claim. Further, it appears
that the defendant never was reauestea to execute the duplicate tke
execution of which is. eon tended, to be a condition, further, it ap:

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 44

pears that the executors never received any rent after the execution
of the deed of 1858. And further, it appears that the objection is not
DOW raised by them, but by the tenant. It appears to me that the
deed was delivered subject to no condition, that it vested the reversion
in the defendant, and consequently that he was entitled to distrain

Rule discharged.

•LARA V. HILL. June 23. [*45

A., a clerical agent, was employed to sell an advowson for B. upon the terms contained in a
cirenlar in which it was stipulated that the commission should become payable upon the adjust-
ment of terms between the contracting parties in every instance in which any information had
been derived at, or any particulars had been given by, or any communication whatsoever had
been made from A.'s office, however and by whomsoever the negotiation might have been con-
dncted, and notwithstanding the business might have been subsequently taken off the books, or
the negotiation might have been concluded in consequence of communications previously made
from other agencies, or on information otherwise derived, or the principals might have made
themselves liable to pay commission to other agents ; and that no accommodation that might be
afforded at to time of payment or advance ehould retard the payment o/ eommieeion.

A contract of sale having been arranged through A.'s agency, and duly executed, and a
deposit paid on the 14th of October, 1862, the residue of the purchase-money being payable on
the 31st of December, — Held, that A. was entitled to his commission at all events on the Slst of
December, although the full purchase-money had not, for some unexplained reason, then been
paid.

This was an action brought to recover 125?. for commission on the
gala of an advowson. The defendant pleaded never indebted.

The cause came on to be tried before Cockburn, C. J., at the last
Spring Assizes for the county of Kent, when a verdict was entered
for the plaintiff for the amount claimed, subject to the opinion of the
court upon the following case : —

1. The plaintiff is an agent for the sale of advowsons, &c., and the
defendant is an attorney.

2. In the ordinary course of the plaintiff's business, the commission
becomes payable upon the signing of the contract or agreement for
the purchase.

8. In July, 1861, the plaintiff was employed by the defendant to
sell the advowson of the living of St. Keverne, cff which the defendant
was the patron.

4. Such employment was upon the terms contained in a printed
circular of the plaintiff, the two material clauses of which- are as
follows, — " Disputes often arise as to the right to commission when
principals employ other agencies; therefore, to avoid all question
. upon this, it is aistinctly understood that the commission becomes
payable upon the adjustment of terms between the contracting parties
in every instance in which any information has been derived at, or
any particulars, whether in writing or otherwise, have been given by
or any communication whatsoever has *been made from^ this r^Aa
oflSce, however and by whomsoever the negotiation may have '■
been conducted, and notwithstanding the business may have been
subsequently taken off the books, or the negotiation may have been
concluded in consequence of communications previously made from
other agencies, or on information otherwise derived, or the principals
may have made themselves liable to pay commission to other agents."

C, B. H. S., VOL. XV.— 4

46 LARA V. HILL. T. V. 1863.

"No accommodation that may be afforded as to time of payment or
advance, to retard the payment of commission."

5. The plaintiff, having negotiated with maxy parties for the sale,
ultimately, on the 18th of August, 1862, made a binding arrangement
with a Dr. Pinnock for the purchase by him of the advowson, upon
the terms contained in the instructions for sale given by the defendant,
and with his approbation.

6. A draft agreement or contract for the sale and purchase of the
advowson was prepared by the plaintiff and sent to the defendant.

7. On the 2d of October, 1862, an agreement between the defendant
and Dr. Pinnock for the sale and purchase of the advowson was duly
signed, by which the sum of 350/. was made payable on the 14th of
October, 1862, by way of deposit, and the residue of the purchase-
money (4150/.) on the 31st of December, 1862. This agreement was
prepared by the attorneys of the parties thereto, and without the
knowledge of the plaintiff; and its terms were substantially the
•Bame as those previously agreed upon between the plaintiff* and Dr,
Pinnock.

8. The 350/. was duly paid: the residue remains unpaid to the
present time: but there is no reason to suppose that the purchase will
not be ultimately completed.

9. The writ in this action was issued on the 3d of February, 1803.
*471 *^^* ■'■' ^^ agreed between the parties that the pleadings in this

-' action on both sides shall form part of this special case, and that
the court may draw any inferences from the facts.

11. The plaintiff* contends, that, when an agreement was entered
into with a person the vendor was content to accept as purchaser, the
right to commission accrued ; and that he, as the agent introducin.cj
the accepted purchaser, was then entitled to receive his commission ; and
that he was not bound to wait until the purchase-money was paid, and
the whole transaction completed.

12. The defendant contends that the right to such commission did
not accrue, and the plaintiff as agent was not entitled to receive his
commission until the purchase-money was paid, and the whole trans-
action completed.

The question for the opinion of the court was, whether the commis-
sion became payable before action.

If the court should be of opinion that it did, then the verdict
entered for the plaintiff was to stand, but to be reduced to 125/. If
the court should be of a contrary opinion, then a verdict was to be
entered for the defendant, unless the court should also be of opinion,
that, although the plaintiff could not claim commission, he was under
the circumstances entitled to recover something, in whieh case the
verdict was to stand, but to be reduced to such an amount as should
be ascertained in such way as the court might direct.
*481 ^^y<^^f for the plaintiff.(a) — The case shows that the *plaintiff
-' found a purchaser for the advowson, and that the contract was duly

(a) The points marked for argameot on the part of the plaintiff were as follows :— I

" 1. That the contract entered into between the plaintiff and the defendant was, that the
commission should be payable upon the adjustment of terms between vendor and purchaser :
•' 2. That, the case finding that such was the contract, and that the terms had been a<y nstad

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 48

. 1

signed and a deposit paid : and there was no reason to doubt that the
remainder of the purchase-money would be forthcoming. The plain-
tiff has therefore done all that was necessary to entitle him to his
commission according to the terms of his employment. The special
clause in the plaintiff's circular amounts to a statenqent of what is the
general understanding in these cases. There having been an absolute
adjustment of the terms of the contract, the vendor cannot deprive the
agent of his commission by choosing to give time for payment of the
balance of the purchase-money. [Bylks, J. — If the terms of the
bargain had been that the commission should be payable upon the
completion of the contract, it might possibly have been contended that
that event had not happened until the payment of the purchase-money.]
Even that would be no answer to the plaintiff's claim, if the payment
of the purchase-money was delayed by the act of the defendant him-
self. The intention of the parties evidently was, that the commission
should become payable as soon as the terms were finally adjusted
between the vendor and the vendee. And this is no hardship on the
defendant. He has accepted ^he purchaser, and has receive4 the
deposit, *and got a binding bargain ; and, for anything that r^A^
appears to the contrary, he may receive the balance of the pur- ^
chase-money to-morrow.

M. Jones (with whom was Lush, Q. C), for the defendant.(a) — The
special clause in the plaintiff's circular only applies where the princi-
})al, after employing the plaintiff, has gone to another agent and ob-
tained a more advantageous bargain : if it were otherwise, there would
have been no necessity for the stipulation that " no accommodation that
may be afforded as to time of payment or advance shall retard the
payment of commission." And, if the special clause did apply, no
time being fixed for the payment of the commission, it is not due
until the whole of the purchase-money is paid. [Williams, J. — The
commission is to be paid notwithstanding time given to the purchaser
for completing the purchase by paying the money. This action was
not commenced until after the purchase-money had become due.]

Joyce, in reply, was stopped by the court.

Williams, J. — I am of opinion that the plaintiff is entitled to judg-
ment. I feel some difiiculty in saying that the effect of the contract
between these parties is, that the commission is in all cases payable
upon the *adjustment of the terms between the vendor and the r^g^
purchaser. But it is unnecessary to decide that, because here ^
the action was not brought until the time was passed at which the
purchase-money had become payable. Mr. Jones says that this con-
struction is inconsistent with the clause in the printed circular, — '* No

between Teoclor and parobaser, time given to the pnrebts^r by the vendor for the oompletion
cannot postpone the plninti£f't right to bii oommiaeion :

" 3. That the apeeial terma of the printed eironlar, ao far aa they affeot the preaent eaie^ are
in accordance wiUi the practioe found aa the naage in the plaintiff 'a profeaaion, that the com-
laiaaion becomea payable upon the aigning of the contract^ — in ether worda, npon the a4jnat-
Bent of the terma."
(a) The pointa marked for argument on the part of the defendant were aa followa : —
** That there waa no agreement by the defendant to pay the plaintiff oommiaaion, nnleaa there
was a aale completed, and the aale baa not been completed : and that the contract waa entire,
and, itntil there waa a aale wmpUted, the plaintiff had not done aU that waa required to be per-
formed on bia part, and no right of payment of any amount aroM until the whole oonuaiaaioa
vie eaned on completion of the pnrchaae."

50 LARA v. HILL. T. V. 1863.

— 1 ' «

accommodation that may be afforded as to time of payment or advancf
to retard the payment of commission." But I apprehend the meaning
of that is simply this, that, if the vendor, who has by the terms of the
contract a right to insist on payment of the purchase-money by a
given day, chooses to enlarge or extend the day of payment, such
extension of the day of payment shall not retard the agent's right to
his commission. I think the plaintiff was clearly entitled to payment
at the time he commenced his action.

WiLLES, J. — I am of the same opinion. The purchase-money was
by the terms of the contract due two months before the commence-
ment of this action ; and no satisfactory account is given why it has
not been paid ; nothing is stated to warrant the notion that there was
any unwillingness or inability on the part of the purchaser to pay it.
The only fair conclusion of fact, therefore, which we can arrive at, is,
that the defendant has chosen to accommodate Dr. Finnock by not call-
ing upon him to complete the purchase at the time he was entitled to
/ do so. Besides, he will receive interest on the money in the mean-
time, and so be placed virtually in the same position as if the pur-
chase had been completed on the 31st of December. I am clearly of
opinion that the clause as to accommodation applies : it obviously points
to a voluntary act on the part of the vendor. The plaintiff was en-
titled to his commission at the latest on the 31st of December.
,-.^1 Byles, J. — I also am of opinion that the plaintiff is *entitled
^ J to recover in this case. There are four epochs at which the
commission may be payable, — first, at the time of the adjustment of
the terms of the sale, or, — secondly, at the time stipulated by the con-
tract, or, — thirdly, at the time stipulated for the completion of the
purchase, or, — fourthly, at the time of the actual payment of the pur-
chase-money. I was at first disposed to agree with Mr. Joyce that
the special clause in the plaintifiTs circular amounted to an implied
agreement that what is there stated is the understanding in all cases.
That, however, upon consideration, I conceive to be doubtful. Then
we come to the time mentioned in the contract. It seems to me that
the words '* no accommodation that maybe afforded as to time of pay-
ment or advance to retard the payment of commission," show that the
commission becomes due when the money stipulated as the purchase-
money becomes payable ; and that is general and applicable to all
cases. If the vendor for any reason thinks fit to postpone the day for
the completion of the contract by payment of the purchase-money,
the commission becomes due, not at the time of actual payment, but
at the time when by the contract it ought to have been paid. For
these reasons, I agree with the rest of the court in thinking that this
action was rightly brought, the time for the payment of the purchase-
money for the advowson in question having elapsed before its com-
mencement. Judgment for the plaintiffl

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 52

♦ELLIS V. THE MAYOR, ALDERMEN, AND BURGESSES r»K«>
OF THE BOROUGH OF BRIDGNORTH. Jult/ 6. >■ ^^

From time immemorial, UDtil lately, a weekly market had been held in the High Street of
Bridgnorth. The market belonged to the corporation of Bridgnorth, who were also lords of
the manor in which the borongh is situate. The plaintiff was the owner of a house in the High
Street; and he and the previous owners and occupiers of that house, as well as several other
occupiers of houses in High Street, had from time immemorial erected, on market-days, stalls
opposite their respective houses, and had exposed thereon goods for sale in the market, or let
the stalls for hire to others who had done so : and no payment had ever been made to or claimed
by the corporation for stallage or for tolls of things sold at such stalls, though they took tolls
of similar produce exposed elsewhere in the market. The corporation removed the market to
another place within the borough, at a small distance from the High Street, and so lAcessarily
iojurionsly affected the interests of those who had rights in the old market : —

Held, that the plaintiff was entitled to maintain an action for the unlawful disturbance by
the corporation of his enjoyment of this right, — which was probably conferred in oonsideraUon
that the holding of the market must necessarily diminish on market-days the trade and custom
of the shops kept in such houses, and the shopkeepers were therefore privileged to advance, as
it were, their shops into the market itself by having stalls in the street commensurate with the
fronts of their houses, and consequently that the enjoyment of the stalls by the owners and
oecupiers of the houses, and those licensed by them, was sufficiently connected with the enjoy-
ment of the houses to satisfy the rule acted upon in Ackroyd v. Smith, 10 C. B. 164, and Bailey
t. Stephens, 12 C. B. N. S. 91, that no right can be annexed to a bouse or land which is uncon-
nected with the enjoyment or occupation thereof.

field also, that the removal of the market was not justifiable under the Public Health Act^
1858 (11 A 12 Vict c. 63), orihe Local Government Act, 1858 (21 A 22 Vict c. 98), inasmuch
as the power to provide market-places conferred upon the local board by the 50th section of
the list-mentioned act, is expressly qualified by the proviso that no market shall be established
so as to interfere with any rights enjoyed by any person, without his consent

This was an action brought by tbe plaintiff against the defendants
for disturbing him in the enjoyment of his alleged right of placing a
stall for the sale of goods by himself or his licensees, on market-days,
in front of his shop in a market held in the High Street, Bridgnorth.

The first count of the declaration stated, that, before and at and
during the times of the committing by the defendants of the griev-
ances thereinafter in that count mentioned, a market for the buying and
selling of divers goods and merchandises was lawfully held in High
Street, Bridgnorth, to wit, weekly, on Saturdays, and during all the
said times the plaintiff was possessed of a house in High Street afore-
said, and entitled to a certain liberty, easement, or privilege, to wit,
that of placing a stall or standing in High Street aforesaid, on the
days when the said market was held as aforesaid, for the sale thereat
by the plaintiff or others by his permission, for reward to the plaintiff,
of such goods *as aforesaid belonging to him or them respect- r^^o
ively in the said market to persons frequenting the said market, ^
as to the said house appertaining and oelonging; which said stall or
standing was at and during the said times used for the purpose afore-
said by a certain person by the plaintiff's permission, for reward pay-
able by him to the plaintiff: Yet the defendants on several occasions
whilst the said market was held and the plaintiff' possessed and en-
titled as aforesaid, wrongfully disturbed the plaintiff' in the enjoyment
of his said liberty, privilege, or easement, and wrongfully established
and held, on the days on which the said market in High Street was
held, a market for the buying and selling of such goods and mercban-
dise, near to the place where the said market was held as aforesaid,
and wrongfully kept and continued the said market so held thenceforth

63 ELLIS V. MAYOR, &c., OF BRIDGNORTH. T. V. 1863.

up to the commencement of this suit; whereby the plaintiff's said
liberty, privilege, or easement was rendered less valuable.

There was a second count similar to the first, — the breach being
that the defendants on several occasions, whilst the said market was
held and the plaintiff entitled and possessed as aforesaid, unlawfully
disturbed the plaintiff in the enjoyment of his said liberty, privilege,
or easement, and on the said occasions wrongfully obstructed the
holding of the said market, and wrongfully continued such obstruc-
tion as aforesaid ; whereby the plaintiff's said liberty, privilege, or
easement was rendered less valuable.

The third count stated, that, before and at and during the times of
the committing by the defendants of the grievances in that count
mentioned, a market for the buying and selling of divers goods and
merchandise was Ijiwfully held in High Street, Bridgnorth, to wit,
weekly, on Saturdays; and during all the said times the plaintiff was
,;^4-| lawfully possessed of a house in *High Street, Bridgnorth, and
■' certain land in High Street aforesaid near the said house was in
the possession of the plaintiS*'s tenant, the reversion thereof belong-
ing to the plaintiff, on which land the plaintiff's said tenant then
lawfully kept, on the days on which the said market was held as
aforesaid, a stall or standing for the sale by the plaintiff's «aid tenant
of such goods as aforesaid in the said market to persons frequenting
the same, and then lawfully sold thereat such goods as aforesaid to
such persons: Yet, &c., breach as in the first count.

The defendants pleaded, — first, not guilty, — secondly, that the said
alleged market was not at any of the said times when, &c., lawfully
held in High Street, Bridgnorth, aforesaid, — thirdly, to the first and
second counts, that the plaintiff was not at the times therein mentioned,
or either of them, entitled to the said supposed liberty, easement, or
privilege in those counts respectively mentioned, nor was the said
stall then used for the purpose therein mentioned, — fourthly, to the
third count, that, at the times therein mentioned, the said land in
High Street was not in the possession of the plaintiff's tenant, nor did
the reversion thereof belong to the plaintiff, as alleged, — fifthly, to
the third count, that, at the said times when, &c., the plaintiff's tenant
on the said land did not lawfully keep, on the days on which the said
market was held, the said stall or standing for the purpose therein
mentioned. Issue thereon.

The cause came on for trial at the Shropshire Spring Assizes, 1862,
when a verdict was by consent entered for the plaintiff for the dam-
ages in the declaration (5/. 5«), subject to a special case, the court to
be at liberty to draw inferences of fact, and to direct any amendments
in the pleadings or otherwise which might be thought necessary for
the justice of the case. The case stated was as follows: —
^j-- 1 *1. The town of Bridgnorth, in the county of Salop, was and
*^^ is an ancient borough and market town. Prior to the passing
of the Munincipal Corporation Reform Act, 5 & 6 W. 4, c. 76, the
corporation of Bridgnorth was a corporation by prescription, under
the style of " The Bailiffs and Burgesses of the borough of Bridgnorth ;"
their privileges being secured to them by charters of King Henry the
Second, King John, King Henry the Third, and King James the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 55

First. The borough is included in the 2d section of Schedule A.
annexed to the said Municipal Corporation Act.

2. The corporation are the lords of the manor of Bridgnorth (which
includes the borough), and, subject to any rights which the facts
hereinafter stated may show to be in the plaintiff, are the lords and
owners of the market and of the soil of the streets in the said town,
including the principal street, called High Street.

3. From time immemorial, until the year 1838, an open market
f)r the sale of horses, cattle, sheep, pigs, corn, and all kinds of provi-
sions and merchandise, has been held weekly, on Saturdays, in the
High Street ; and, for the greater accommodation of the persons fre-
quenting this market, the corporation in the year 1850 erected a
market-hall in the middle of the High Street. There is no evidence
to show that any arrangement or payment was made for or by reason
of its erection with or to the owners or occupiers of the houses in
front of which the market-hall extends. Such portions of the goods
brought to the market as could be provided with accommodation
under the market-hall have ever since continued to be exposed there ;
but the rest, with the horses, cattle, sheep, pigs, and corn, were
exhibited for sale in the open High Street. From- the time of the
erection of the market-hall, the corporation have exercised the entire
and sole 'control over it and the standings in it, and have re- r,-g
ceived payments in respect of such standings on two of the days ^

on which fairs are held in the borough (there being eight fair days
during the year); but they have not received any payment in respect
of the said hall or standings on market-days.

4. The market continued to be thus held until the year 1838, when
the corporation of the borough, under by-laws made in that behalf,
removed the pig-market and also the cattle-market to another part of
the town. The other commodities brought to the market continued
to be exposed for sale in High Street.

5' The corporation appointed clerks of the market, and formerly
took tolls in kind of corn, grain, fruit, nuts, and other like produce
brought into the market ; and, at various times from a very early
period, let out such tolls for considerable sums : but the taking of such
tolls was suspended in the year 1817 by order of the corporation, and
they have never since been collected. No tolls were ever taken of
goods sold at the stalls hereinafter mentioned, nor was any rent or
sum of money ever received by the corporation in respect of such
stalls, except for two stalls standing on a piece of land belonging to
the corporation, near the town -hall.

6. The plaintiff is the owner and occupier of a house in High Street,
standing on the west side thereof; and he and the previous owners
and occupiers of his house, as well as several other occupiers of houses
in High Street, have from time immemorial erected on market-days
wooden movable stalls or standings, with tarpaulin coverings ; and
these have been set up or erected opposite to their respective houses
in the said street; and they have either used such stalls or standings
for the display and sale of their own merchandise, or let them to other
persons attending the said market, who have paid for the right of
standing and the use of *such stalls, to the occupiers of the houses p- ^
opposite to which the same have been placed, certain sums '■

67 ELLIS V, MAYOR, &c., OF BRIDGNORTH. T. V. 1863.

agreed upon between them and such other persons and the occupiers,
and which in the plaintiff's case have amounted to 13/. a year. Such
user has been as of right and without interruption, except so far as
the facts stated in this case may show to the contrary. The plaintiff
has never himself used such stalls or standings for the display and
sale of his own goods, but has always let them to others.

7. Amongst the plaintiff's title-deeds are three several conveyances
of the property, dated respectively in the years 1735, 1782. and" 1821,
in which the words "stalls and standings in the street" are used
among the general words at the end of the parcels; but no number
is specified in any of them. Similar wprds occur in old conveyances
and leases of houses in various parts of the town of Bridgnorth ; but
there is no evidence of any user under or according to such convey-
ances or leases.

8. The stalls or standings occupy part of the highway on market-
days, and to that extent obstruct the free passage of the public. The
highway on the east side of the said market- hall is left open and un-
obstructed for the use of the public.

9. The corporation have from time to time regulated the standings
in the market on. the east side of the market-hall, for the prevention
of encroachments on the carriage thoroughfare, which is and always
has been used only on that side of the street on market-days; and,
when disputes have arisen between the people attending the market,
either in respect of the standings in any part of the High Street or of
any other matter, the policemen of the borough have by order of the
mayor interfered to settle such disputes : but they have not interfered
*581 ^^^'^ ^^^ plaintiff's *standings ; nor have the corporation or
. ^ any one acting under their authority interfered with the right of
stallage as between the occupiers or owners of the houses in High
Street who had stalls or standings to let and those to whom they were
let.

10. In the year 1854, a joint-stock company for the purposd of
erecting new market-buildings in the said town of Bridgnorth was
formed under the provisions of the 7 & 8 Vict. c. 110, and was after-
wards registered under the provisions of the Limited Liabilitv Act,
1855 (18 & 19 Vict. c. 133), by .the name of ."The Bridgnorth Public
Buildings and Markets Company, Limited." The company erected
certain buildings on a site out of High Street, but within twenty
yards of that part of it where frequenters of the market had exposed
their wares for sale, and at a distance of 110 yards from the old mar-
ket-hall, and of 150 yards from the plaintiff's house. On this site, in
the course of the years 1855 and 1856, they erected large buildings,
with conveniences for holding the market therein, and for other pur-
jioses. [A plan was annexed to and was to form part of the case,
showing the situation of the High Street, the position and extent of
the stalls or standings therein, the market-hall, buildings, and houses
referred to in the case, the boundaries of the parishes, and also the
size of the said buildings.]

11. The said company has not obtained from the Crown any char-
ter or grant empowering it to establish a new mfirket in the said
borough of Bridgnorth ; nor has it obtained any act of parliament or
other authority to enable it to remove or in any way interfere with

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 58

the said market so from time immemorial existing ia High Street
aforesaid.

12. The new market was first opened by the company in Decem-
ber, 1856, and a large number of persons went into it ; but, as a con-
siderable portion still ^continued to use the old market,'the re- r^»^q
mainder returned gradually ; and the new market was closed. *-

13. The Public Health* Act, 1848 (11 & 12 Vict. c. 63), was, by
order in council in 1853, applied to the borough of Bridgnorth ; and
the Local Government Act, 1858 (21 & 22 Vict. c. 98), took effect in
the said corporate district from the 1st of September, 1858, and such
act has since been in full force and operation within such corporate
district.

14. By the last-mentioned statute (s. 24) it is enacted that the duty
of carrying into execution the said act shall be vested in a local
board, and that such local board in corporate boroughs shall be the
mayor, aldermen, and burgesses acting by the council : and the 50th
section of the act enacts that the local board in corporate districts
shall, with the consent of two-thirds of the local board, have power
to do the following things, or any of them, within the district: —

1. To provide a market-place and construct a market-house and
other conveniences for the purpose of holding markets: to provide
houses and places for weighing carts : to make convenient approaches
to such markets : to provide all such matters and things as may be
necessary for the convenient use of such market : to purchase or take
on lease land and public or private rights in markets and fairs for any
of the foregoing purposes : to take stallages, rents, and tolls in respect
of the use by any person of such market-house. But no market or
slaughter-house shall be established in pursuance of this section, so
as to interfere with any rights, powers, or privileges enjoyed within
the district by any person, chartered, joint-stock, or incorporated
company, without his or their consent.

2. For the purpose of enabling the local board to establish markets
in manner aforesaid, or to regulate *markets already established p^g^
in any corporate borough before the constitution of a local ^
hoard therein, there shall be incorporated with this act the provisions
of the Markets and Fairs Clauses Act, 1847 (10 & 11 Vict. c. 14), in so
far as the same relates to markets, with respect to the holding of the
market or fair and the protection thereof, and with respect to the
weighing goods and carts, and with respect to the stallages, rents,
and tolls, and with respect to by-laws, — subject to this proviso, that
all tolls leviable by the local board in pursuance of this section shall
be approved of by one of Her Majesty's principal secretaries of state.

15. Shortly after the passing of this act, the members of the local
board opened negotiations with the company for a lease of their mar-
Ket-buildings : and on the 14th of December, 1860, a lease was exe-
cuted between '*The Bridgnorth Public Buildings and Market Com-
pany, Limited" of the one part, and "The Bridgnorth Local Board
of ilealth" of the other part, whereby the company let to the said
local board all such parts of the said buildings and markets as had
been appropriated for a general market, a butchers' market, and china,
glass, and crockery stands, and all the stalls and fittings in the said mar-
kets, and also the use for the purpose of a corn-exchange (but for no

60 ELLIS V. MAYOR, &o., OF BRIDGNORTH. T. V. 1863.

other purpose) on every Saturday during the continuance of the said
demise, of such part of the said buildings as had been appropriated for
an assembly-room, To hold the same (subject to an indenture of mort-
gage dated the 17th of December, 1857, made between the company
and one Cooper) unto the said local board from the 14th of December,
1860, for the terra of twenty-one years, at a pepper-corn rent : and it was
thereby agreed and declared that the said buildings and premises (ex-
cept tlie assembly-room) should be used as a market, and that the use
♦fin ^^ ^^^ *asaembly-room for a corn-exchange should be altogether

•J discretionary with the said local board, that, until used as a corn-
exchange, the said company might use the said room as they mi;];ht see
fit ; and that the company should make certain fittings and alterations for
the purpose of a market at their own expense, and according to the plan
of the surveyor of the local board, to be approved of by two justices of
the peace of the said borough: And it was thereby further agreed and
declared that the weighing-machine already in the said High Street
should be used for the weighing of carts and carriages, and the said
board of directors should find and procure all additional implements
whatsoever (except a cjirt- weighing apparatus) which might be required
for the management of the markets, and should keep such additional
implements and the demised premises in sufficient repair, and defray
all expenses attending the management thereof; and, if the said
directors should fail so to do, it should be lawful for the said local
board to find and provide such implements and to keep the same and
the said demised premises in such sufficient repair, and with or out
of the stallages, rents, and tolls to be levied and received by them in
respect of the said premises, to pay all the expenses of such imple-
ments and repairs and all necessary expenses attending the manage-
ment of the said premises: And the local board in and by the said
lease covenanted with the company that they would, so far as they
lawfully could, before fixing the amount of stallage rents and tolls
leviable by the said local board, consult and advise with the said com-
pany, and, so far as the law permitted, would allow the said company
or airectors thereof to join with them in settling the rates and amounts
thereof respectively, and would cause the same to be approved of by
one of Her Majesty's principal secretaries of state, and that the
♦621 *^^^^ ^^^^^ board would, so far as they legally could, use their

-• best endeavours to prevent any person or persons otlier than a
licensed hawker selling or exposing for sale any articles in respect of
which tolls were authorized to be taken in any of the said markets,
in any place other than in the said markets, or in his or their own
dwelling-place or shop : But it was provided and declared that they
should not be obliged to take or institute any proceedings against
any person or persons whomsoever, unless specially requested by
the board of directors of the company to do so : And the company
thereby covenanted with the local board that they would save
harmless and keep indemnified the local board from and against
all actions, suits, proceedings, claims, demands, costs, charges, losses,
damages, and expenses which might be commenced or prosecuted
against them, or which they might sustain, be at, or be put unto by
reason or on account of the local board holding markets in the said
buildings and premises as aforesaid, or preventing or endeavouring to

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 62

prevent (at the special request of the board of directors as thereinbe-
I fore mentioned) any person or persons selling or exposing for sale
I articles out of the aforesaid markets, or by reason or on account of
I any compensation or damages or which might be payable in respect
i of the matters connected with the said markets or the holding
thereof, or any claim for such compensation, or by reason or on
account of any act, matter, or thing whatsoever which they the
local board should do under or by virtue of the said lease or the
powers of the Local Government Act, 1858, or for the purpose of
carrying into effect any of the powers or provisions of the said lease
or the said act, or any matter or thing connected therewith : And it
was thereby further agreed and declared, that, in case the said local
board should at any time after the expiration of seven 'years p^^o
from the date thereof, and during the continuance of the said ^
demise, be desirous of purchasing the whole of the said buildings and
markets for the time being belonging to the said company, they should
be at liberty to do so at a price to be fixed by arbitration ; and that
DO act or omission by or on the part of the said J. H. Cooper as a
director of the said company, should prejudice or in any wise affect
his right or remedies as a mortgagee. The said lease was executed
by Cooper as a deputy-chairman of the said board of directors, and
by J. L. Whatmore, mayor of the said borough, as chairman of the
local board of health, under their respective official seals.

16. The legal estate in the new market-buildings had been,
previously to the execution of the said lease, vested in the said J. H.
Cooper, to whom the company had conveyed them by way of mortgage
to secure a sum of 2500?. and interest; and there is now due to him
upwards of 2800?. on such security ; and the legal estate has continued
vested in him from the time of the mortgage.

17. The local board having possession of the new buildings under
the lease, the same were inspected by two justices; and on the 12th
of January, 1861, a certificate was signed by them verifying that such
new buildings so leased as aforesaid were completed and fit for public
use as a market-place for the said town of Bridgnorth.

18. The defendants prepared and issued a table of tolls to be taken
in the new market; and the same was, on the 4th of January, 1861,
approved by one of Her Majesty's principal secretaries of state.

19. The defendants, pursuant to the acts in that behalf, had
previously published in the Bridgnorth Jourual a notice that the local
board of health intended to apply after the end of one month to Her
•Majesty's principal secretary of state for the allowance of certain ri^^A
by-laws for regulating the use of the market-place, which might *■

be inspected at all reasonable times without fee or reward, and a copy
thereof furnished to any person applying for the same upon the
terms stated in the said act, and also a copy of the proposed table
of tolls. •

20. The plaintiff's attorney had previously, on behalf of certain
persons whom he did not name, but who, he stated, were entitled to
stalls in the market, given notice to the clerk of the board of his
intention to oppose any such application, and that he should apply to
the Court of Chancery for an injunction to restrain the removal of the
market. Immediately after the publication of the notice in the local

64 ELLIS V. MAYOR, &c., OF BRIDGNORTH. T. V. 1863.

{)aper, T. "Whitefoot, J. M. Glasse, and C. J. Lewis delivered to the
ocal board a written notice to the effect that, feeling themselves
to be parties aggrieved by, and being desirous of objecting to,
these by-laws, they intended to oppose their allowance by Her
Majesty's principal secretary of state, and to request permission to
attend before him, by themselves, their counsel, attorney, or agent, and
that the nature and grounds of their objections to such by-laws were,
amongst others^ — that the said by-Jaws, and particularly the first of
them, appointing a new and different situation for the market to be
held from the situation in which it had been held from timer immemo-
rial, thereby attempting to remove the said market into another street,
in a different parish, — without having first obtained their consent and
that of others having prescriptive rights of stallage in the street where
the market had always been held, as well as the rights, powers, and
privileges which they had hitherto enjpyed within the district, — Were
repugnant to the laws of England and the provisions of the Local
*651 Government Act, 1858, and the ^Markets and Fairs Clauses Act,
^ 1847, and that the said local board had exceeded their juris-
diction in making such by-laws, as well for the above-stated reasons
as for other reasons appearing on the face thereof.

21. The said T. Whitefoot, J. M. Glasse, and C. J. Lewis did then
and still do occupy houses on the same side of the High Street as the
house of the plaintiff; and all claimed rights in respect of their
respective houses similar to those claimed by the plaintiff in respect
of his house ; and they afterwards were co-plaintiffs with him in the
bill in Chancery after mentioned.

22. The board being advised, however, by their counsel, that it was
unnecessary to lay the by-laws before the secretary of state, no appli-
cation was made in pursuance of the notice for his sanction of the by-
laws ; and the proposed scale of tolls was alone laid before and sanc-
tioned by him on the 4th of January, 1861 : and the market was aftrer-
wards, as hereinafter mentioned, opened in the new buildings by the
defendants, without the sanction of the secretary of state being obtained
for the by-laws.

23. On the 15th of January, 1861, a bill in Chancery was filed by
the plaintiff in this action, together with nine other occupiers of houses
in the said High Street, against the defendants in this action, praying
that the defendants, acting by their council, and their servants and
agents, might be restrained by the order and injunction of that court
from establishing or holding a market in the said new market-build-
ings, and from using the said buildings for the purposes of a market,
and from taking any tolls in respect of market-stalls therein, and from
otherwise interfering with the rights, powers, or privileges of the plain-
^/./.-i tiffs in that *suit as occupiers of the houses occupied by them in

^^J High Street aforesaid.

24. On the 81st of January, 1861, a motion was made before Wood,
V. C. ; but his honour did not grant the injunction, because he con-
siderea there were disputed questions of law and fact which should be
tried at law : and he ordered the motion to stand over for the plaintifib
to bring such action as they might be advised.

25. On the 8th of February, 1861, the corporation of Bridgnorth,
by the town-council, adopted the following resolution, — " Whereas, by

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 66

the records of the town, it appears that the corporation originally, by
the title of The Mayor, Aldermen, and Burgesses, have exercised their
privileges as lords of the manor within the town and liberties of
Bridgnorth, and as owners of the soil of the public streets, frontages,
and waste grounds and public buildings throughout the borough town
of Bridgnorth, and by the award of the commissioners for the enclo-
sure of the common of Morfe adjoining the town, dated in the year
1808, they were recognised as lords of the manor and the said borough,
and that from time immemorial they have exercised control over the
market and fairs of the said borough : And whereas buildings have
been erected at the south end of High Street, about the centre of which
street the prescriptive markets have from time immemorial been and
are now held on Saturday, weekly, under the control and regulation
of the corporation : And whereas such buildings have been erected by
private individuals, and have been appropriated and adopted for a
covered market and other public purposes at an estimated cost of
upwards of 8000^., and have been leased to the local board of health
under certain stipulations which will ultimately tend to the general
advantage of the town and its inhabitants, by rendering *unne- r^n»
cessary the taking up loans on mortgage of the district-rates for '-
such purpose ; to which covered market the council, acting for the
corporation, have been invited to remove the present market from the
streets : Considering, therefore, the present heavy debt on the town,
and the great convenience it would afford to the inhabitants and others
frequenting the market, and the absence of any risk to the public
funds of the town, — the council, acting for the corporation, deem it
expedient that the market already established in High Street, on the
ground-floor of the town-hall there, should be removed from High
Street and the east end of Listley Street : The mayor, aldermen, and
burgesses, acting b^ the council, Kesolved, that, in the exercise of all
rights the corporation, as lords of the manor, owners of the soil in the
public streets, and lords of the market in the borough of Bridgnorth
by prescription, the prescription markets hitherto held on Saturdays
at the town-hall and in High Street in Bridgnorth aforesaid, shall on
Saturday the 28d of February instant be removed from thence to the
covered market-place at the south end of High Street and east end of
Listley Street : Also that the said market, when removed, shall be
henceforth held at the said covered market-place on Saturdays, and so
continued from time to time: Also that the public notice of the same
BOW produced to the council, and read over, is approved on behalf of
the corporation, and it is agreed shall be published twice in the Bridg-
north Journal, viz., on the 9th and 16th of the present month of
February, and circulated largely by hand-bills in the town, and that
the same be proclaimed by the town-crier on Saturdav the 9th and
16th of February instant : Also that notice be given to the other occu-
piers of stalls on market-davs for the sale of merchandise on the
ground-floor of the town-hall, that the *corporation withdraw r^egg
their consent as owners of the same, and from and after the 16th ^
of February instant the occupation of such ground-floor of the town-
hall on market-days for the purpose of sale of merchandise therein
shall cease : Also that notice be given to the other occupiers of Btalla

68 ELLIS V. MAYOR, &c., OF BRIDGNORTH. T. V. 1863.

on market-days on the site of old buildings in High Street, for which
they pay acknowledgments to the borough treasurer."

26. The local board of health afterwards, on the 8th of February,
1861, came to the following resolution, — "That, in pursuance of the
provisions and powers vested in the local board of health by the Local
Government Act, 1858, and the clauses of the acts incorporated therein,
the covered market-place provided for the town by the local board of
health, situate at the south end of High Street and east end of Listley
Street be appropriated for holding the markets on Saturdays, subject
to such regulations as are prescribed by the said Local Government
Act and acts therein incorporated ; nevertheless so as not to interfere
with any rights or privileges within the said borough, which under
the 60th section of the Local Government Act, 1858, ought not to be
interfered with : Also that the local board of health do fully concur in
and approve of the proposed form of public notice of removal of the
market and the adoption of the covered market-place provided for that
purpose, read over at this meeting, and agreed that the same be pub-
lished twice in the borough journal and by hand-bills distributed at
the discretion of the mayor, and that all other matters and things be
done which are authorized by the Local Government Act, 1858, for
the effectual regulation of the said market when removed as aforesaid."

27. Pursuant to these resolutions, on the 8th of February, 1861, the
town council and local board issued the following notice : —

,^Q^ *" Removal of the market. Borough of Bridgnorth.

J " Notice is hereby given, that the mayor, aldermen, and burgesses
of the borough of Bridgnorth, acting by the council of the said borough
in pursuance of all powers vested in them as owners of the markets
of Bridgnorth, and lords of the manor, and as local board of health
under the Local Government Act, 1858, and the acts incorporated
therewith, and of all other powers (if any) vested in them, have, for the
purpose of holding the market established in the town and borough
of Bridgnorth, and heretofore holden under the town-hall and in the
High Street of the said town, provided a covered market-place situate at
the south end of High Street and at the east end of Listley Street, in
the said town and borough, and duly certified by two justices of the
peace for the said town and borough as complete and fit for the use of
the persons resorting thereto, and will on Saturday, the 23d instant,
remove the market so established and holden as aforesaid to such
covered market-place, and such market will be then opened, held, and
established for the public use, and continued on that and every
succeeding Saturday at such new market-place, but so as not to
interfere with any rights, powers, or privileges within the said borough,
which, under the 50th section of the Local Government Act, 1858,
ought not to be interfered with ; and that, after such opening of the
said covered market-place for such use as aforesaid, every person other
than a licensed hawker, or any person entitled to any such rights,
powers, or privileges as aforesaid, who shall sell or expose for sale in
any place within the said town and borough except in his or her own
dwelling-house or shop, any article in respect of which tolls are from
time to time authorized to be taken in the said new market-place, will
*7m ^® liable for every offence to a penalty not exceeding *405. : And

-I furthef take notice, that, although it is not at present intended

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 70

to prevent those occupiers of houses in the High Street of the said
town and borough who have of late years been in the habit of erect-
ing on market-days standings opposite their respective houses from
erecting the same for the display and sale of their own merchandise,
other persons cannot be allowed to display or sell their merchandise
in such standings. JoHN Smith, Town-clerk and

clerk to the local board of health "

28. After the said notice, the local board opened the new market-
buildings on the 23d of February, 1861, and have continued to keep
them open on market-days, and have kept a market-clerk in attend-
ance, and have received through him tolls and rents from persons using
the market, and have applied the same according to the terms of the
lease.

29. The defendants, except as hereinbefore appears, in no way in-
terrupted or interfered with the plaintiffs stalls or standings in the
High Street; and the persons to whom he let them continued to erect
and occupy them without any hindrance or obstruction whatever, on
market-days, down to the time of the commencement of the present
action as theretofore they had done : but the effect of opening the new
market was, to withdraw from the old market many of the public
who would otherwise have attended it.

30. ]Seither the company nor the local board have /purchased or
taken on lease, or offered to purchase or take on lease, the supposed
right of the plaintiff'; nor have they or either of them obtained nor
has the plaintiff given his consent to the establishing of the aforesaid
new market.

The question for the opinion of the court was, whether the plaintiff
had, under the circumstances *above stated, a right to maintain ^^^^
this action against the defendants in respect of any one or more •■ '
and which of the counts in the declaration, subject to amendment as
aforesaid.

If in the opinion of the court the plaintiff was entitled to succeed in
the action upon any one or more of the counts, judgment was to be
entered for the plaintiff upon such count or counts for 5Z. 55. damages,
together with costs, and for the defendants upon the residue of such
counts, with their costs in respect thereof: but, if in the opinion of
the court the defendants were entitled to succeed, judgment was to be
entered for the defendants, with costs.

Huddlestony Q. 0. (with whom was Gray) for the plaintiff. — The
corporation were not justified in removing the market and thus
depriving the plaintiff of the privilege he was entitled to enjoy : the
franchise will be forfeited by disuse or by holding it otherwise than
in the accustomed place : Dixon v. Robinson, 8 Mod. 107. The mar-
ket must be held within the precincts named in the grant : Curwen v,
Salkeld, 3 East 538. In The King v. Starkey, 7 Ad. & E. 95 (B. 0.
L. R. vol. 34), 2 N. & P. 169, B., being entitled to a market in the
borough of Keighley, which was held in the public street on B.'s soil,
removed it to another site in Keighley, which site he had demised,
without demising the franchise, for a term of years. Is was held by
the whole Court of King^s Bench that the removal was bad, unless
the public had the same privilege in the new market as in the old ;
and therefore, it appearing that no toll bad ever been taken in the

71 ELLIS V. MAYOR, &o., OF BRIDGNORTH. T. V. 1863.

old market, but that the lease, after a covenant by the lessees to allow
the soil to be used solely for the market, empowered them to impose
rents at their discretion for the liberty of selling in the market, — the
*721 ^^"^^ ^®^^ *^^^ *^® *removal was bad, and that the site of the

^ old market on the King's highway might be used on market-
days as it was before the removal. [Erle, 0. J. — That case decides
no more than that no nuisance was created by continuing to resort to
the old market.] The reason assigned is that the removal was illegal.
If the charter under which this market in High Street was originally
established had been forthcoming, it would have been competent to
the owners of the market (in the absence of any grant of a special
franchise to the occupiers of the adjoining houses) to remove it to any
convenient place within the limits defined by the grant: but, the
charter not being forthcoming, and there being evidence that the
market has never within living memory been held elsewhere than in
the High Street, it will be presumed that the grant is for that place
only. The place to which the market is removed is not the soil of
the corporation : the legal estate is in Cooper. And the rights given
to the public in the new market are more restricted than those which
they enjoyed io the old one ; for, tolls are imposed there upon persons
and things which in the old market were toH-free. That the plaintift'
would have a right of action for obstructing the access of customers
to his stall, is clear from Rose v. Groves, 6 M. & G. 613 (E. C. L. R.
vol. 44), 6 Scott N. R. 646. [Williams, J.— This is more like the
case of a man claiming a pew in a church as appurtenant to his house.
WiLLBS, J. — Or like the grantor of a several fishery letting off all
the water. Erlk, C. J., referred to the opinions of the judges on the
Islington Market Bill, 12 M. & W. 20,(6) and also to the Local
Government Act, 21 & 22 Vict. c. 98, a. 50, which empowers the local
board to provide market-places, and construct market-houses and
other conveniences for the purpose of holding markets.] But the
section goes on to provide that " no market shall be established in
*731 *P^^suance of this section so as to interfere with any rights,

-' powers, or privileges, enjoyed within the district by any person,
&c., without his or their consent." Here is a right m the plaintiff
which the new market does materially interfere with. [Williams,
J., referred to The King v. Cotterill, 1 B. & Aid. 67. There King
Charles the Second, by charter, granted to the corporation of Walsall
two fairs to be holden annually within the borough and foreign, and
confirmed to them all markets which they then held, with a reserva-
tion of the rights of the lord of the manor : it appeared that a market
had been holden immemorially in the High Street of Walsall until a
very late period, when the corporation, findine it inconvenient,
removed it out of the High Street to another and more convenient
place within the borough: the corporation had exercised acts of
ownership in pulling down an old market-house and erecting a new
one : the clerk of the markets, however, had been appointed by the
lord of the manor, but he did not receive any toll from the persons
frequenting it. The defendant having been indicted for a naisance in
erecting stalls in the High Street after the removal of the market, the
judge, upon the trial, left it to the jury to say whether the corpora-
tion were owners of this market, adding, that, if they were, the right

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 73

of removal (to a convenient place within the borough) was incident
to the grant. The jury having found in the affirmative, the court
refused to grant a new trial.] All claims which are founded on
custom must be reasonable : Tyson v. Smith, 9 Ad. & E. 406 (E. C. L.
R. vol. 36), 1 N. & P. 784 : there is nothing unreasonable in that
which the plaintiff here claims as appurtenant to his house.

Phipson (with whom was Dowdeswell), contri. — PrimS facie it is
competent to the owner of a market *to remove it to a more con- p,^^
venient spot witfiin the limits of the grant or presumed grant. ^
This is clear from The King v. Cotterill, 1 B. & Aid. 67. And in Do
Ratzen v. Lloyd, 5 Ad. & E. 456 (E. C. L. R. vol. 31), 6 N. & M. 776.
in case by the lord of a manor for disturbance of a market, it was
held, that, if the lord prove a market immemorially holden in certain
places within the manor, it is not a necessary legal inference (no grant
being produced) that the market was granted to be holden in those
places only ; but that a jury may presume, from circumstances, that
the market was granted to be holden at any convenient place wi,thin
the manor. Assuming, however, that there was no valid removal of
the market here, what franchise had the plaintiff the infringement of
which he complains of? He could only have it by virtue of some
grant : The Mayor of Northampton v. Ward, 1 .Wils. 107 ; Lockwood
V, Wood, 6 Q. B. 31 (E. 0. L. R. vol. 51). [Williams, J.— If the
owner of a market in the streets of a town covenanted with the owners
of the houses adjoining that they might have stalls there on market-
days for the sale of their commodities, and then removed the market
to another place, would not that be derogating from his grant ? It
would be something like the case of a man granting estovers, and
then grubbing up the wood.] A man cannot have a stall in a market
as appurtenant to his house, — at all events, in the manner claimed
here. In Jones v. Richard, 6 Ad. & E. 530 (E. 0. L. R. vol. 33),
tenant of B., prescribed to have for himself and his tenants, &c., occu-
piers of the farm of B. the sole and exclusive right of pasture and feeding
of sheep and lambs on L,y as to the said farm of B. belonging and apper-
taining: it was held that this did not entitle him to take in the sheep
and lambs of other persons to pasture on L., for that by the terms of
the grant some interest in the pasture was reserved to the lord, and
the above practice was prejudicial to such *interest. To be r^,^-
good, a grant must be certain as well as reasonable : Comyns's ^
Digest, Orant (E. 14) ; Bacon's Abridgment, Grants (H.) ; Clayton v.
Corby, 5 Q. B. 415 (E. C. L. R. vol. 48), 2 Gale & D. 174. No trace
is to be found in any of the books of an action ever having been'
brought for the invasion of such a right as this : it cannot be claimed
as incident to land.

Huddleston, in reply. — In Rolle's Abridgmetit, Nusans (G), pi. 2, it
is said : " Si home levie un market ou un faire d'estre tonus mesme le
jour que mon faire ou market est tenus, en un vill que &<^t prochein a
men faire ou market, per que mon faire ou market est empaier, ceo
est un nusans al mon market ou faire, car le grant del Roy de tiel
&ires ou markets est touts foits ove un clause que ceo ne serra al
nusans d'auter faire ou market/'-— citing the Year Books 22 H. 6, fo.
14 b, 11 H. 4, fo. 47 b, 41 E. 8, fo. 24 b. And see Yard v. Ford.
2 Wms. Saund. 172, and the authorities cited in the notes thereto. A

0. B. N. 8., VOL. XV.— 6

75 ELLIb V. MAYOR, &c., OF BRIDGNORTH. T. V. 1863.

Btall in a market held as this market was, may well be claimed as
appurtenant to a house, as may a pew in a church : Stocks v. Booth, 1
T. R. 428; Co. Litt. 121 b. In Stephen's Commentaries, 4th edit.
664, treating of fairs and markets, it is said, that, "when any of the
privileges in question can be shown to exist, the party entitled to it
has a right of action, not only against those who refuse or evade pay-
ment of toll where it is due, but against those also who disturb his
franchise by setting up a new fair, market, or ferry so near to his as
to diminish his custom," — citing Rollers Abridgment, Nusans (G.), pi.
2, CornynsV Digest, Action upon the Case for a Nuisance (A.) 8, Blissett
v. Hart, Willes 503, De Rutzen v. Lloyd, 5 Ad. & E. 456 (E. 0. L. R.
vol. 31), 6 N. & M. 776, Bridgland v. Shapter, 5 M. & W. 375. Pirn v.
Curell, 6 M. & W. 234. Cur. adv. vulL

•7n * Williams, J., delivered the judgment of the court: — We
-• are of opinion that our judgment ought to be for the plaintift*.
He claims a right of placing a stall for the sale of goods by himself
.or his licensees, on market-days, in front of his shop in a market held
tin the High Street of the borough of Bridgnorth, as appurtenant to
•hi« house situate in that street : and his complaint is, that he has been
.disturbed in the enjoyment of this right by the defendants holding on
market-days another market near the market in which the right is so
claimed by the plaintiff.

The facts are, that, from time immemorial till lately, a weekly mar-
ket has been held in the High Street of Bridgnorth. The market
belongs to the corporation of Bridgnorth, who are also lords of the
manor in which the borough is situate. The plaintiff is the owner
and occupier of a house in the High Street; and he and the previous
owners and occupiers of this house, as well as several other occupiers
of houses in the High Street, have from time immemorial erected on
market-days stalls opposite their respective houses, and have exposed
thereon goods for sale in the market, or let the stalls for hire to other
»per8ons who have done so: and no payment has ever been made or
claimed by the corporation for stallage or for tolls of things sold at
such stalls, though they took tolls of similar produce exposed in the
•market elsewhere.

The defendants have moved the market to another place within the
•town, at some small distance from the High Street, which would be
necessarily injurious to the old market if it was continued, and to the
right claimed by the plaintiff therein.

But the demand for compensation in respect of this injury is re-
sisted, — first, on the ground that the moving of the market is justifi-
able under the Public Health Act, 1848, 11 & 12 Vict. c. 63, and the
,y^. Local ♦Government Act, 1858, 21 & 22 Vict. c. 98, — secondly,
-' that there is no legal foundation for any right of plaintiff which
is interfered with by the removal of the market from the High Street
to its new site, and no cause of action in respect of such removal.

It appears t<^ us, that, inasmuch as the power as to providing mar-
ket-places conferred on the local board by s. 50 of the Local Govern-
ment Act, 1858, is expressly qualified by the provision that no mar-
ket shall be established so as to interfere with any rights enjoyed by
any person without his consent, the two questions raised on the part
>)f the defendants may be narrowed to the single one, whether tbe

COMMON BENCH REPORTS. (15 J. SCOTT. N. 8.) 77

plaintiff has shown that the removal of the market was an unlawful
interference with any right then enjoyed by him.

No authority in any way referring to such a right was cited by
counsel on the argument of this case ; nor has the court been able to
discover any. It is therefore necessary to consider on principle
whether such a right is maintainable.

On the part of the plaintiff, the argument rests on the long-estab-
lished rule, as mentioned by Lord Hobart in Slade r. Drake, Hob,
295, that ''antiquity of time fortifies all titles, and supposeth the best
beginning the law can give them." And it is urged that the imme-
morial enjoyment in the present case may well have had a legal
origin, on the supposition either that at' some former period the then
owners of the market granted to the respective owners of the houses
abutting on the High Street and their heirs, as a right annexed to
their estate in the houses, that the occupiers thereof might on market-
days respectively erect stalls in the Market Street opposite their
houses, for the exposure of goods, free of all toll and stallage ; or that
the original grant of the franchise from the Grown to the corporation
was expressed to be on the terms or •condition that the owners |-^,-g
of those houses should enjoy that right. ^

We think these arguments are well founded, and ought to prevail.

This right was probably conferred in consideration that the holding
of the market must necessarily diminish on market-days the trade
and custom of the shops kept in such houses, and the shopkeepers
were therefore privileged to advance, as it were, their shops into the
market itself, by having stalls in the street commensurate with the
fronts of their houses. And in this point of view the enjoyment of
the stalls by them and those licensed by them appears to us sufficiently
connected with the enjoyment of the houses to satisfy the unquestion-
able rule of law, — which was acted on by this court in Ackroyd v.
Smith, 10 0. B. 164 (E. 0. L. R. vol. 70), and Bailey v. Stephens, 12
C. B. N. S. 91 (E. C. L. R. vol. 104),— that no right can be annexed
to a house or land which is unconnected with the enjoyment or occu-
pation thereof.

On the part of the defendants, besides denying that any such right
could have a legal existence^ it was urged, that, even if the right ex-
isted in respect of erecting such stalls in the High Street as long as
the market was held there, yet that they, as owners of the market,
might legallv remove it to any new place within the manor, and that,
in respect of such new site, the right was annihilated. The cases of
Curwen v. Salkeld, 8 East 538, The King v. Cotterill, 1 B. & Aid. 67,
and De Rutzen v. Lloyd, 5 Ad. k E. 456 (E. L. C. R. vol. 81), 6 N. &
M. 776, certainly justify the proposition, that, if nothing further
appeared in the case, the presumption would be that the original grant
from the Crown was for the holding of the market at any convenient
place in the manor, and that, accordingly, the owners of the franchise
in the present case might change the site of it, as they have in fact
done.

*Bnt the answer to this argument is, that if the riffht of the r^t^g
plaintiff had its origin, as suggested, in a grant from the owners ^
of the market, their successors cannot be allowed to derogate from
that grant by changing the site of the markei-plaoe : or, if the right

79 ELLIS V, MAYOR, Ac, OF BRIDGNORTH. T. V. 1863.

had its origin, as further supposed, in a condition contained in the
grant by the Crown of the franchise, the terms of that condition would
in effect amount to a grant of a market to be held in the Uigh Street
and in no other place, and consequently the removal of it by the de-
fendants to the new site would be illegal. If this be so, then, accord-
ing to the case of The King v, Starkey, 7 Ad. & E. 95 (E. C. L. R.
vol. 84), 2 N. & P. 169, the High Street continues to be, in point of
law, the site of the market, and the plaintiff may maintain this action
for setting up a new market to the injury of his right in the ancient
market.

Our judgment, for these reasons, must be for the plaintiff.

Judgment tor the plaintiff.

BERKLEY v. SHAFTO. June 23.

By deed of 1857, A., who was tenant for life under the will of one S., ooaveyed (under a
power) land to B. in fee, with a reseryation ont of the grant of " all and erery the aeam or eeama
of eoal and other minerals under the said hereditaments hereby granted, with power to win,
woriK, and carry away the same under or over any part of the said hereditaments and premises,
— the said A., or the person or persons for the time being entitled thereto, and his or their
assigns, paying to the said B., his heirs and assigns, compensation for any damage which he
or they may sustain thereby," and a corenant by A. that he had not done or permitted any aoi
or thing whereby the premises or the title thereto should or might be encumbered or prejudiciHlly
affected. And B. corenanted, for himself, his heirs and assigns, ** that the said hereditament*
and premises hereby conyeyed, or any buildingt now or hereafter to be erected thereon, shall not
at any time hereafter be used for the manufacture, sale, or storing of any combustible matter,
or for the purpose of any offensire trade or business, the side walls to be jiot less than 18 feet
high, and to be in uniformity with the street," Ac.

In 1844, S., A.'s testator, had demised to C. and D. " a colliery and coal-mines and seams of
eoal, as well opened as not opened" (including and comprising all seams of coal under the land
conveyed by the deed of 1857), with full power to the lessees, their executors, administrators,
and assigns, to win, workj and carry away the said seams of coal for a term of years not yet
expired.

The plaintiff became posseised of the land comprised in the deed of 1S57| and built four honsea
thereon : and, whilst he was so possessed, the houses were injured by the working and carrying
away by the assignees under the lease of 1844 of the seams of coal thereunder. He thereupon
brought an action against A., claiming compensation under the reservation contained in the
deed of 1857.

The defendant (A.) pleaded seventhly, — as to so much of the count aa related to the damaga
and iqjury done to the part of the said piece of ground on which the said houses were built,
and to the said houses, and to the compensation claimed by the plaintiff in respect thereof, —
that such damages and ii^ury were occasioned by reason of the said housei having been erected
thereon : —

Held, that the compensation clause in the deed of 1857 extended to houses thereafter built
upon the land, and consequently that the seventh plea was no answer to the declaration.

The declaration stated that a deed was made by and between the
defendant, being the party thereto of the second part^ and the other
*801 P^^^^^^ therein mentioned *and which said deed was signed and
^ sealed by the defendant, and his consent therein contained and
expressed was attested by two credible witnesses, and was and is of
the tenor and in the words and figures following, that is to say, —
" This indenture, made the ISth of February, 1857, between John
Eden, of, &c., and tha B^y. J. D. Shafto, of, &g^ of the first part, R
D. Sbafto^ of, &Q.y of the. second part^ and R. Robinson, oi &c., of the
third p^t: Wb^ce^i;^ E« D. Shafto^ la(^ of Wbitworth Park, by his

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 80

will dated the 21st of October, 1842, gave and devised the heredita-
ments and premises hereinafter conveyed (inter alia) to the said John
Eden (then and therein called John Methold) and the said J. D. Shafto
and their heirs, to the uses and upon the trasts thereinafter declared,
viz. to the use that his wife, C. D. Shafto, should receive thereout a
rent-charge or annuity of 1300/. ; and, subject thereto, to the use of
the said John Eden and J. D. Shafto, their executors, administrators,
and assigns, for the term of 2000 years, upon the trusts thereinafter
declared, and which in no way affect these presents; and, from and
immediately after the determination thereof, to the use of the said
•R. D. Shafto, party hereto, and his assigns, for his natural life, r^r.^
without impeachment for waste; with remainder to the use of '-
trustees therein described, their heirs and assigns, during the life of
the said R. D. Shafto, upon trust to preserve contingent remainders ;
with remainder to the use of the first and every other the sons of the
said R. D. Shafto lawfully to be begotten, one after another, as they
should be in priority of birth, and the heirs of their bodies respect-
ively issuing, with divers remainders over: And the said testator by
his said will declared that it should be lawful for the said John Eden
(therein called John Methold) and J. D. Shafto, with the consent and
approbation of such of his children or grandchildren, or other the
person who by virtue of the uses and limitations therein contained
and hereinbefore partly recited should be entitled to the first estate
of freehold or inheritance in possession of and in the manors, heredi-
taments, and premises hereinbefore devised, or any part thereof re-
spectively, — such child or children, grandchild or grandchildren, or
other person as aforesaid, being then of the full age of twenty-one
years, — such consent or approbation to be signified by any writing
or writings under the hand and seal of the person or persons whose
consent was thereby made requisite, and to be attested by two or
more credible witnesses^ absolutely to sell and dispose of all or any
part of the said manors, hereditaments, and premises (other than and
excepting his capital messuage at Whitworth aforesaid, with the ap-
purtenances thereunto belonging, and the lands and grounds usually
held and enjoyed by him the said testator along with the same capital
messuage), unto any person or persons whomsoever, either together
or in parcels, for such price or prices as to the said John Eden (there-
in called John Methold) and J. D. Shafto should seem *reason- r^^^
able, and upon payment of the purchase-money to sign and give '■
proper receipts for the same, which should be sufficient discharges to
the purchaser or purchasers for the money therein expressed to have
been received, and such purchaser or purchasers shall not afterwards
be answerable or accountable for any loss, misapplication, or non-ap-
plication thereof: And it was declared that the premises so sold
should be for ever freed and discharged from all and every the uses,
estates, trusts, limitations, powers, and provisoes therein declared :
And whereas the said testator died on or about the 19th of January,
1848, leaving the said R, D. Shafto (party hereto), his eldest son, and
tenant-for-life of the manors, hereditaments, and premises devised by
the said recited will, and who has long since attained the age of twen-
ty-one years : And whereas the said John Eden has long since the
death of the said testator, by Royal license and autho rity, assumed

8a BERKLEY v. SHAFTQ. T. V. 1863.

the surname of Eden in lieu of the surname of Methold : And where-
as the said John Eden and J. D. Shaflo contracted and agreed with
the said E. Bobinson for the absolute sale to him of the piece or par-
cel of ground hereinafter more particularly described and intended
to be hereby conveyed, and the fee-simple thereof in possession, for
the price or sum of 225Z., which said piece or parcel of ground forms
portion of the lands and hereditaments devised by the said recited
will of the said R. E. D. Shafto, but no portion of the lands and
grounds usually held and occupied by the said R. E. D. Shafto along
with the said capital messuage at Whitworth aforesaid: Now,
this indenture witnesseth, that, in pursuance of the said agree-
ment, and in consideration of the sum of 225i sterling this day
paid by the said R. Robinson to the said John Eden and J.
D. Shafto, the receipt whereof is hereby by them respectively
*831 **^cknowledged, they the said John Eden and J. D. Shafto, in

-' exercise of the power and authority so given to them by the
said recited will as aforesaid, do and each of them doth (with the
consent and approbation of the said R. D. Shaflo, testified by his
being party to and signing and sealing these presents, such signature
and sealing being attested by two witnesses) grant, release, and convey
unto the said R. Robinson and his heirs all that piece or parcel of
ground situate at or near to the village of Spennymoor, in the county
of Durham, containing in length from east to west 330^feet or there-
abouts, and in breadth from north to south 42 feet or thereabouts, and
containing in the whole 1540 square yards or thereabouts, and which
said piece or parcel of ground is bounded on or towards the east and
north by land belonging to the vendors, on or towards the west by'
land belonging to G. Beedall, and on or towards the south by George
Street, together with the rights, members, and appurtenances there-
unto belonging, &c. ; except and always reserved out of these presents
all and every the seam or seams of coal and other minerals under the
said hereditaments hereby granted, with power to win, work, and
carry away the same under or over any part of the said hereditaments
and premises, — the said R. D. Shafto, or the person or persons for the
time being entitled thereto, and his and their assigns, paying to the
said R. Robinson, his heirs and assigns, reasonable compensation for
any damage which he or they may sustain thereby, — To have and to
hold the same unto the said R. Robinson, his heirs and assigns, to the
use of the said R. Robinson, his heirs and assigns, for ever : And the
said R. Robinson hereby declares that no woman who shall become
his widow shall be entitled to dower out of the said hereditaments and
♦841 pr®°^^3^8 • -^^^ e2ko\i of them the said John Eden and ♦J. D.

J Shafto, so far only as relates to his own acts and deeds, hereby
for himself, his heirs, executors, and administrators, covenants with
the saidR. Robinson, his heirs and assigns, that they respectively have
not done or permitted any act or thing whatsoever whereby the said
hereditaments and premises intended to be hereby conveyed, or the
title thereto, can, shall, or maybe encumbered or prejudicially affected
in any way howsoever : And the said R. D. Shafto hereby, for himself,
his heirS) executors, and administrators, covenants with the said
R. Robinson, his heirs and assigns, that, notwithstatiding any act done
by him the said R. D. Shafto, or the said R. E. D. Shafto, deceased,

COMMON BENCH KEPORTS. (15 J. SCOTT. N. S.) 84

to tbe contrary, tbey the said John Eden and J. D. Shafto, or one of
them, now have in themselves, or has in himself, good right, full power,
and lawful and absolute authority by these presents to grant and
release the said hereditaments and premises to the uses and in the
manner aforesaid, according to the true intent and meaning of these
presents [Covenants for further assurance, for production of title
deeds, Ac] : And that free from all encumbrances whatsoever created
or occasioned by him the said R. D. Shafto or any of his ancestors or
testators, or any other person whomsoever rightfully claiming under
him or them : And the said R. Robinson, for himself, his heirs and
assigns, hereby covenants with the said R. D. Shafto and his assigns
and tTie person or persons who for the time being shall be entitled
under the limitations contained in the hereinbefore in part recited will
of the said R.D. Shafto to an estate of freehold in the said Whitworth
estate, and his and their assigns, that the said hereditaments and
premises hereby conveyed, or any buildings now or hereafter to be
erected thereon, shall not at any time hereafter be used for the manu-
facture, sale, or storing of any combustible *matter, or for the r^^g-
purposes of any offensive trade or business, the side walls to be '-
not less than than 18 feet high, and to be in uniformity with the
street, the windows to be 4 feet wide and 5 feet 6 inches in height;
and further, that he or they will as soon as conveniently may be here-
after make and for ever hereafter maintain on the piece or parcel of
ground intended to be hereby conveyed in the front of the dwelling-
house or shop now or hereafter to be built thereon, a footway or
pathway to be open at all times for the passage of all persons on foot,
such footway or pathway to be of the width of 4 feet at the least, and
will at his or their own expense cause the same to be flagged and keep
such flagging at all times hereafter in good repair ana free from all
obstructions whatsoever, which said pathway shall be made uniformly
to suit the general fall in the street, and will pay his proportion of
the costs and expenses of draining, sweeping, or otherwise cleaning
the street or streets, or intended street or streets in which the premises
hereby conveyed, and erections now or hereafter to be built thereon,
shall be situate, and shall erect boundary walls not less than 7 feet in
height, and shall not put out windows to overlook the adjoining
properties. In witness," &c. Averment, that after the making of the
said deed, and while the estate and interest thereby conveyed to the
said R. Robinson continued to be and remained vested in him by virtue
of the said deed, certain messuages and dwelling-houses, to wit, Nos.
101, 102, 103, and 104, George Street, Spennymoor, were erected and
built on the said piece of ground so conveyed to him ; and afterwards
and while the said estate and interest so continued to be and remained
vested in him by virtue of the said deed, he, by deed between him
and W. Oliver, dated the i2th of May, 1857, granted, released, and
♦conveyed unto the said W. Oliver and his heirs, all the said p^^gg
four messuages and dwelling-houses so as aforesaid erected '-
upon the said piece of ground, together with all and singular his
estate, right, title, &c., of, in, or to the same, to hold the same and all
the premises thereinbefore in the said deed described and expressed
to be thereby conveyed, with their appurtenances, unto and to the use
of the said W. Oliver, his heirs and assigns, for ever : That afterwards,

86 BERKLEY v. SHAFTO. T. V. 1863.

and while the same estate and interest conveyed by the said last-
mentioned deed to the said W. Oliver continued to be and remained
vested in him by virtue of the premises, the said W. Oliver, by deed
between him and the plaintiff, dated the 13th of May, 1857, granted,
released, and conveyed the said messuages and dwelling-houses, with
the yards, out-oflBces, and conveniences thereto belonging, to the plain-
tiff' and his heirs, to hold the same to the use of the plaintiiF, his heirs
and assigns, for ever: That, before the making of the herein first
named and above set forth deed, the said R. E. D. Shafto, by deed
dated the 12th of September, 1844, between him of the one part and
T. Brown and W. C. Gillan of the other part, granted, demised, and
leased unto the said T. Brown and W. C. Gillan, their executors,
administrators, and assigns, a colliery and coal-mines and seams of
coal, as well opened as not opened, including and comprising all seams
of coal extending, reaching, or being under the said piece of ground
and the said four messuages and dwelling-houses so as aforesaid con-
veyed to the plaintiff', with full power to the said T.Brown and W. C.
Gillan, their executors, administrators, and assigns, to win, work, and
carry away the said seams of coal, for a term' of years not yet expired :
That, after the making of the said last deed of conveyance by the said
♦ft"! ^* Oliver to him the plaintiff*, and while the same *estate and
'■^ interest thereby conveyed to him the plaintiff* of and in the said
messuages and dwelling-houses continued to be vested in him the
plaintiff in possession by virtue of the said deed, and before this
action, the said messuages and dwelling-houses were injured and
damaged, and the plain tiff* sustained damage thereto, by [such] winning,
worlcing, and carrying away, to unt, by the said lessees of the said
R, E, D. Shafto, or his assigns (a) of seams and parts of seams of coal,
which seams extended, reached, and were under the said piece of
ground above mentioned, and which sustained and supported the said
piece of ground and the said messuages and dwelling-houses : That,
by such winning, working, and carrying away, the foundations of the
said messuages and dwelling-houses were weakened, cracked, injured,
and oaused to subside and swaj^^, and to be dilapidated and less fit for
habitation and uninhabitable, and the plaintiff lost the rents and
profits which otherwise he would have derived from the said messuages
and dwelling-houses, and the same have, by reason of the premises,
been diminished in value and rendered worthless, whereof the defend-
ant had notice: And that, although plaintiff^ had done all things,
and all things had happened, and all times had elapsed, to entitle
the plaintiff' to maintain this action, and to be compensated by the
defendant for the damage aforesaid : Yet that no compensation had
been paid to the plaintiff* for the said damages.

The defendant demurred to this declaration ; the ground of demurrer
stated in the margin being, ** that the defendant is not liable under the
covenant to pay compensation for the damage alleged in the declara-
tion; and that the defendant is not shown in the declaration to have
done such damage." Joinder.

*881 *Sixth plea, to the first count, so far as it relates to the cause
■■ of action in the said first count mentioned in respect to the win-
ning and working therein alleged, and so far as the same relates to the

(tt) Struck oat on argument : ride post, p. 95.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 88

injury and damage occasioned and sustained thereby, and as to the
compensation for the same, and as to so much of the said first count
as charges the defendant with not having paid such compensation, —
that such winning and working was not done in pursuance of or under
and by virtue of the indenture in the declaration alleged to have been
made by the said E. E. D. Shafto, dated September 12th, 1844, or
under and by virtue or in pursuance of any of the powers or authori-
ties therein contained, and was not done by the defendant or by any
person by his authority or direction, or for whose act or acts he was
or is responsible.

The plaintiff demurred to the sixth plea, on the ground that it raised
an immaterial issue. Joiuder.

Seventh plea, as to so much of the first count as relates to the damage
and injury done to the part of the said piece of ground on which the
•6aid messuages and dwelling-houses were erected and built and stood,
and to the said messuages and dwelling-houses, and to the compensa-
tion claimed by the plaintiff in respect thereof, — that such damage and
injury were occasioned by reason of the said messuages and dwelling-
houses having been so erected thereon.

The plaintiflF demurred to the seventh plea ; the ground of demurrer
stated in the margin being ''that the compensation clause in the deed
of 1857 extends to houses built afterwards ; and that the plea does not
show that but for the working of the mines the damage would not
have occurred." Joinder.

Manisty, Q. C. (with whom was T, E. Chitty), for the *plain- r^gg
tiff.(fl)— [Williams, J. — The defence set up is twofold,— first, ^
that the acts complained of were authorizea by the lease, — secondly, ,
that the injury was occasioned by the building of the houses.] It
appears from the declaration, that the testator, on the 12th of Septem-
ber, 1844, granted a lease of the minerals under the land in question
to persons named Brown and Gillan ; that he died in 1848, having by
his will devised his estate to trustees to the use of the defendant for
life, with remainders over, with a power of sale in the trustees, with
the consent of the person for the time being entitled to the fee ; that,
in February, 1857, the trustees, with the consent of the defendant,
under the power, conveyed the piece of land in question to Robinson
xn {^G, for building purposes, reserving the mines and minerals, "with
power to win, work, and carry away the same under or over any part
of the said hereditaments and premises," the defendant, or the person
or persons for the time being entitled thereto, and his and their assigns,
paying to Bobinson, his heirs and assigns, compensation for any
damage which he or they might sustain thereby ; and that Robinson

(a) The poinUi murked for argnment on the part of the plaintiff were ai follows : —
" L That the first count is good, and fixes the defendant with liability nnder the compensa-
tton elaaie for the damage done to the plaintiff's houses by the working of the mines, — 2. That
the sixth plea raises immaterial issues, — 8. That the eorenant is absolute to pay for damage
by the woricing of the mines,, by whomsoever worked, — 4. That the question whether the minei
were worked nnder the defendant's authority is irreleTaat,— 5. That the sixth plea is not sared
by the allegations of matter of law contained in it, — 6. That the seventh plea raises an imma-
terial issue, — 7. That the compensation clause extends to damage to houses built after the date
of the deed,— 8. That the eighth plea admits the damage by working the mines, and the aUegad
occasion of the damage is immateriaL"

BERKLEY v. SHAFTO. T. V. 1863.

♦901 ^f^^r w^^^s *conveyed to persona under whom the plaintiff claims.

-• It is submitted that this is a covenant the benefit of which runs
with the land, and that the declaration sufficiently shows that the acts
in respect of which compensation is claimed have been done by per-
sons for whowse acts the defendant is answerable, viz., the lessees of the
testator, or their assigns. It is true the declaration does not in terms
allege that the lease authorized the working of the mines under the
land in question : but it must be assumed that the working was right-
ful, until the contrary is shown. The plaintiff would have no remedy
against the lessees or their assigns, unless he could show them to bo
wrongdoers. The question is, whether the compensation which the
defendant is to pay under his covenant, is limited to surface damage.
The sixth plea probably means to allege that the acts complained of
were the acts of wrongdoers ; but it is not so stated. Nor does the
seventh plea afford any answer to the declaration. [Williams, J. — •
Does not the declaration confine the complaint to acts done under the
lease?] It is submitted that it does not. [Williams, J. — Then why
mention the lease ?] It was necessary to set out the lease, in order to
explain the breach. [Bylks, J. — The sixth plea is equivalent to an
allegation that the acts complained of were done by a stranger.] The
seventh plea is clearly bad : the deed of 1857 evidently contemplates
that there shall be houses built upon the land.
*9n Q^^^i^f contri.(a) — The first count is clearlj*^ bad : ♦the only

■• breach assigned, is, non-payment of compensation for damage.
The count shows that the injury complained of is, injury to the sur-
face of the land by letting it down and so damaging the plaintiff's
buildings. It is submitted that that is not a damage within the com-
pensation clause ; but that the plaintiff must seek his remedy by an
action upon the case against the person who did the mischief. The
compensation contemplated by the deed, is to be for something done
in pursuance of the reservation: but the declaration does not show
that the damage complained of is the lawful winning and working of
the coal under that reservation. A leading case upon this subject is
Harris v. Ryding, 5 M. & W. 60. There, A., being seised in fee of
certain lands, granted them to P., his heirs and assigns, reserving to
himself, his heirs and assigns, " all and all manner of coals, seams and
veins of coal, iron-ore, and all other mines, minerals, and metals which
then were or at any time and from time to time thereafter should be
discovered in or upon the said premises, &c., with free liberty of
ingress, egress, and regress to come into and upon the premises, to
dig, delve, search for, and get, &c., the said mines and every part
thereof, and to sell and dispose of, take, and convey away the sa.me, at
their free will and pleasure, and also to sink shafts, &c., making a fair
compensation to P. for the damage to be done to the surface of the
premises, and the pasture and crops growing thereon." It was held,
that, under this reservation, A. was not entitled to take all the mines,
but only so much as he could get, leaving a reasonable support to the
surface. Parke, B., in the course of the argument, observes, — "The

(a) The poiDto marked for argament on the part of the defendant were as follows : —
" 1. That it is not shown by the declaration that any damage has been done by any of the
persons for whose acts the defendant has covenanted to make compensation, — 2. That he la not
liable for the damage occasioned by the houses, Ac, being pat upon the land."

COMMON BENCH REPORTS. (16 J. SCOTT. N. S.) 91

clause as to compensation means for damage done by exercising the
powers reserved. This is case for working the mines in an unreason-
able manner. If you work the mine in an unreasonable *man- p^g^
ner, it is not within the clause." And, in giving judgment, he ^
says : " The rule of law is, that a reservation is to be construed strictly :
still, however, it would reserve to the granto/ all that was not con-
veyed by the grant, provided the meaning and intention of the parties
be clear. What then is the meaning and intention of the parties here ?
It is clearly the meaning and intention of the grantor that the surface
shall be fully and beneficially held and enjoyed by the grantee, he
reserving to himself all the mines and veins of coal and iron-ore below.
By reasonable intendment, therefore, the grantor can be entitled under
the reservation only to so much of the mines below as is consistent
with the enjoyment of the surface according to the true intent of the
"parties to the deed, that is, he only reserves to himself so much of the
mines and minerals as could be got, leaving a reasonable support to
the surface." [Williams, J. — That case is also an authority to show
that the compensation clause only gives a cumulative remedy.] Smart
V. Morton, 5 Ellis & B. 30, is a very similar case. [Williams, J. —
If a man covenants to pay compensation for damage resulting from
what he properly does, does he not k fortiori covenant to pay compen-
sation for what he improperly does?] The result of all the cases, —
Roberts v. Haines, 6 Ellis & B. 643 (E. C. L. R. vol. 88), (in error,
Haines, app., Roberts, resp., 7 Ellis & B. 625 (E. C. L. B. vol. 90)),
Robotham v. Wilson, 8 Ellis & B. 123 (B. C. L. E. vol. 92), 8 House
of Lords Cases 348, Bonomi v. Backhouse, E. B. & E. 642, Backhouse
v. Bonomi, 9 House of Lords Cases 503, — is, that a' reservation of a
power to work mines and minerals does not authorize a working so as
to destroy the support of the surface ; and that the defendant's liability
is confined to compensation for such acts as he or those for whose acts
he is responsible may do by virtue of the reservation. The next
question is as to the person by whom the *injury is to be com- |-#qo
mitted. The action is not founded upon the lease, but exclu- ^
sively on the reservation in the original grant : the lease is introduced
merely for the purpose of showing by whom the injury was commit-
ted. The reservation in the deed is, — " except and always reserved
out of these presents all and every the seam and seams of coal and
other minerals under the said hereditaments hereby granted, with
power to win, work, and carry away the same under or over any part
of the said hereditaments and premises ; the said B. D. Shafto or the
person or persons for the time being entitled thereto, and his and their
assigns, paying to the said B. Bobinson (the lessee), his heirs and
assigns, reasonable compensation for anv damage which he or they
may sustain thereby." To assign a good breach of that covenant, the
declaration must aver a working of the mines by B. D. Shafto or the
person or persons for the time being entitled thereto : whereas, it is
consistent with what is here alleged that the injury complained of was
done by a perfect stranger ; there is no allegation that the working was

1>ursuant to the reservation in the deed of 1857, or pursuant to the
ease. [Byles, J. — May this be treated as a count in tort?] It is
submitted not; for, in that case, it must be shown that the injury was
done by the defendant or by some person with his privity and by his

93 BERKLEY v. SHAFTO. T. V. 1863.

authority. [Byles, J. — You say tbat workings without the power
are wrongs; and that the defendant is liable for lawful workings,. but
not for wrongs.] Precisely so : the authorities show that the wrong-
doer is the only person liable. The 7th plea addresses itself to the
suggestion that the land in question was conveyed for building pur-
poses. Since the case of The Caledonian Railway Company, app.,
♦941 ^P^^^' resp., 2 Macq. 449,(a) it cannot be denied *that, if this had

■• been a grant of land expressly for building purposes, there
would have been an implied grant of the land together with the build-
ings to be erected upon it. Here, however, there is no express grant
for building purposes ; no covenant to build. The plaintiff relies on
the collateral covenant by the grantee that the hereditaments and pre-
mises conveyed by the deed, " or any buildings now or hereafter to be
erected thereon," shall not be used for certain purposes. The obvious
meaning of that, is, that, if the grantee shall hereafter choose to use
the land for building purposes, he shall not thereby create a nuisance.
[Williams, J. — There is abundant evidence, on the face of the deed
that the parties contemplated that the land would be built upon.]
That will not bring the case within The Caledonian Railway Com-
pany, app., Sprot, resp. There, the company could not use the land
for any other purpose than the construction of their railway. The
plea is clearly good, within the cases of Brown v. Robins, 4 Hurlst.&
N. 186, and Stroylan v. Knowles, 6 Hurlst. & N. 454. In the last-
mentioned case it was held, that, where the working of mines, in how-
*9^1 ^^^^ careful *a manner, has caused a subsidence of the adjacent

-' land, the owner is entitled to recover in respect of damage to
buildings thereon, although erected within twenty years, provided their
weight did not contribute to the subsidence,

ifanisiy, Q. C, in reply. — The question is narrowed to this,—
whether there was a rightful or a wrongful working of the mines by
the lessees or their assigns : if the former, it is conceded that the
defendant is liable ; but, if the latter, it is contended that he is not.
Vice-Chancellor Wood decided yesterday, in a suit by the tenant for
life to restrain the lessees from working the mines so as to disturb the
surface, that they were not only entitled but bound to work out all
the coal, irrespective of any injury that might be done to the surface.
Smart v, Morton, 5 Ellis & B. SO, decides that you must look at the
reservation to see what is a rightful and what a wrongful working.
The plaintiff is no party to the deed. It is for the defendant to show,
if the fact be so, that the working was wrongful. [The Court sug-
gested that the declaration should be amended by striking out the
words in italics in p. 87, and substituting the following, — *' by such

(a) It WAS there held that » oonreyanoe of lead to a railway oompany for the pnrpoies of
the line, gires a right hy impUcatioii to all reasonable rabjacent and a^aeent support oonneoted
with the subject-matter of Uie conveyance : and therefore, although in the oonreyanoe to the
ridlway company the minerals are reserred, the grantor is not entiUed to work them, CTen
under his own land, in any manner calculated to endanger the railway. Bat, if I grant a mea-
dow to A. for grating purposes, ret^ning the minerals and the a^Jaoent land, and if A., haring
no warranty against subsidence, thinks fit to build a house on the edge of the meadow, aad the
house falls, he is without remedy against me, and has himself alone to blame for the conse-
quences. If, howcTcr, the grant were made expressly for building puiposes, there would then
be an impUed warranty of support, both sulgacent and a^jacent^

And tee BlUot v. The North Eastern RaUway Company, 83 Law J., ChaA. 403 (in the Houn
«f Lords).

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 95

wiDning, working, and carrying away as in the first deed is mentioned
and provided for," withdrawing the demurrer to the declaration, and
substituting a traverse for the sixth plea. After some discussion, this
was assented to.] The substantial question is, whether the winning
and working was rightful. It may be assumed to have been done
under a lease granted before the conveyance of 1857. With know- .
ledge of the existence of the lease, the defendant chooses to convey the
land with this compensation clause. The covenant will be construed
with reference to the state of things at the time of the making of the
deed : Smart v. Morton. As to •the seventh plea, — it may be r^g^
conceded, that, if the houses were built under an ordinary lease, '-
and their building occasioned the subsidence, the plaintiff would have
no cause of action. But it is otherwise where it is manifest en the
face of the deed that it was contemplated that the land should be
used for building purposes. Regard being had to the dimensions of
the subject-matter of jthe conveyance, at the comparatively large price
paid for it, and at the nature of the covenants entered into by the
grantee, it is impossible to doubt that this was a grant for building
pul-poses.

Williams, J. — I am of opinion that the declaration, as amended,
is good, and the seventh plea bad, and consequently that the plaintiff
is entitled to judgment. As the declaration originally stood, in con-
junction with the sixth plea, some very important points were raised :
and the material part of those points will arise again whenever the
argument upon the traverse which is now substituted shall take place.
The declaration, after setting out the purchase-deed of February, 1857.
and bringing down the title to the plaintiff, proceeds to allege the
damage done after his title accrued ; and it states the damage in this
way, — "the said messuages and dwelling-houses were injured and
damaged, and the plaintiff sustained damage thereto, by such winning,
working, and carrying away as in the first deed is mentioned and
provid^ for, of seams and parts of seams of coal, which seams
extended, reached, and were under the said piece o^ ground above
mentioned, and which sustained and supported the said piece of ground
and the said messuages and dwelling-houses," &;c. The amended record
will contain a traverse of that averment, in lieu of the sixth plea : and
the first question we have to decide, is, whether the declaration as
thus amended is good. I *am of opinion that it is. There is a ^g^
distinct admission by the demurrer that the injury was such as ^
formed the subject of compensation under the clause for compensation
contained in the deed ; and the declaration is good, unless the nature
of the covenant makes such a breach repugnant and impossible. I
was at first much struck with the view presented on the part of the
defendant, that this was nothing more than the ordinary covenant
contained in deeds where there is a separation of the mines and
minerals from the surface of the land, viz. that the grantor shall have
a right to win and work the minerals and to use the surface for the
purpose of carrying them away, constructing works, and opening
shafts, payable a reasonable compensation for surface damage. At
first I was inclined to think that this was simply a covenant of that
sort. But we have nothing to do with that now. Even construing
the covenant in that narrow way, I cannot say that it is not possible

97 BERKLEY v, SHAFTO. T. V. 1863.

that the damage complained of may have been done by a winning and
forking of the mines by persons for whose acts the defendant is
responsible. As to the seventh plea, — we are not fettered by any of
the authorities cited, though the reasoning of some of them may
Msefully be applied to the present argument. The question is one of
xonstruction upon the surrounding circumstances appearing upon the
record. The plea in effect denies that the plaintiflF is entitled to com-
pensation under the clause for compensation contained in the deed,
for damage (if any) resulting from the winning and working of the
minerals under the land, because such damage was occasioned by the
erection of the houses thereon. It is plain, I think, from the whole
tenor of the deed, that the parties did contemplate that houses would
be buik upon the land: it is almost treated as a certainty. It seems
monstrous to say, that, where a deed contemplates the building of
♦981 *'^°'^s®^» ^°^ provides specifically for what shall be done when the
-• houses are built, the grantee shall forfeit his claim to compensa-
tion because he has carried into effect that which was contemplated
by the grant. I am clearly of opinion that the plaintiflF is entitled to
compensation if he has sustained damage from the working of the
mines, notwitstanding his having built on the laud, and consequently
that the seventh plea is no answer to the declaration. '

WiLLES, J. — I am of the same opinion. As to the declaration, all
that the court does, is, to direct that the issue shall be in the proper
form for determining whether or not the-acts complained of are acts
which are within the compensation clause in the deed. As to the
seventh plea, the question raised, is, whether the deed affords any
protection in respect of injury done to the surface of the land with
houses built upon it. I must admit that my mind has fluctuated
during the argument on this point. The only mention of buildings
is in the covenant of the vendee against using the premises so as to
incur danger or create a nuisance, and has reference rather to the
rights of the vendor than to those of the vendee. But, when it is pointed
out that this relates to " any buildings now or hereafter to be erecUi^
on the land, I think it must clearly be implied that the building of
houses was contemplated, and that the houses to be built were entitled
to support, and consequently that the damage* done to them is to be
compensated for.

Byles, J. — It is unnecessary to express any opinion upon the
declaration as it originally stood. The amendment, which >was very
properly consented to by Mr. Quain, has entirely changed its efiFect.
The question now presented by the breach, as amended, is, whether
♦991 ^^^ working of the mines which is complained *of was a work-
-• ing provided for by the deed. I cannot say that that is a bad
breach, unless I am prepared to say that under no conceivable circum-
stances could it be a good breach. Upon this I express no opinion.
But, as to the seventh plea, I entirely agree with my Brothers Wil-
liams and Willes.

Bule accordingly, — the costs to be costs in the cause.(a)

(a) At the trial the plalotUT obtained a Terdict, which there was no attempt to dtitnrh.

COMMON BENCH REPORTS. (16 J. SCOTT. N. S.) 99

NELSON and Others v. COUCH and Others. June 23.

To eoDBtitnte a good plea 6f res jadicata/ It must be shown that the former suit was one in
whieh the plaintiff might have recovered jtrtfiuf^y that which he seeks to recover in the second.

Where, therefore, the plaintiffs had nndlclr ^^d^cree of the Admiralty Court in a suit for a
collision obtaiued the whole proceeds of thc'saVsv^ the defendants' vesselp — Held, that such
recovery was no bar to a subsequent action in a cglirt;pf common law, the amount so recovered

in the Admiralty Court being insufficient to eovei' ta^.d&mage the plaintiffs had sustained.

*• • •

This was an action to recover damages igainst the defendants for
running down the plaintiffs' vessel on the hign^'seas.

The declaration stated, that, before and at tno'thne of the grievance
thereinafter mentioned, the plaintiffs were la^i&illy possessed of a
certain ship of great value, to wit, the Peri, then Jdwfully being at
sea, to wit, in the English Channel, and the defend aat^-vrere also then
possessed of a certain ship, to wit, the Leo, in the saiS-^afUsh Chan-
nel, and then had the care, direction, and management df "Eh^^ same ;
yet that the defendants, not regarding their duty in that bebal^^ y^Jiilst
the said ship of the plaintiffs so was in the English Channel afgr^gnd,
took so little and such bad care of, and so carelessly, negligently ,^3>fld
unskilfully navigated, managed, governed, and directed the said ship
of them the defendants, that the said ship, by and through the care-
lessness, misdirection, mismanagement, negligence, and improper con-
duct of the defendants *and their servants in that behalf, then r#|AA
with great force and violence ran foul of and struck against the '-
said ship of the plaintiflfe, and thereby then sank and swamped the same;
and by means of the premises the said ship of the plaintiffs, together
with all her cargo, tackle, apparel, and other furniture, goods, chattels,
and effects, then on board thereof, became and was wholly lost to the
plaintiffs. Claim, 1500/.

Second plea, — that, before the commencement of this action, the
plaintiffs did in the High Court of Admiralty of England, then law-
fully having jurisdiction in that behalf, duly institute a cause against
the defendants' said ship Leo and the freight thereof, for and in respect
of the matters complained of in the declaration, and for the same
causes of action therein named ; and thereupon the plaintiffs caused a
warrant to be duly issued out of the said court, commanding the
marshal of the said court and all and singular his substitutes to arrest
the said ship and freight, and to keep the same under safe arrest until
he or they should receive further orders, and to cite all persons who
had or claimed to have anv right, title, or interest in the ship or
freight, to enter within six days from the service thereof (exclusive
of the day of such service) in the registry of the said court an appear-
ance in the said cause, and further commanding the said marshal and
all and singular his substitutes to warn all the said persons, that, if
they did not enter an appearance as aforesaid, the judge of the said
coart would proceed to determine the said cause, and to make such
order therein as to him should seem ri^ht : that the said marshal duly
arrested the said ship and freight, and executed the said warrant ac-
cording to the tenor and purport thereof: that an appearance was
daly entered in the said cause by and on behalf of the owners of the
cargo of the said ship, and the sum of 1871. Ss. Id., being *the

amount of the freight of the said ship, was paid into the regis-

[*101

101 NELSON t;. COUCH. T. V. 1863.

try of the said court : that no appearance was entered in the said cause
by or on behalf of the defendants, the owners of the said ship ; and
thereupon such proceedings were lawfully had by the plaintiffs in the
said court, that the said ship, with Jber tackle, apparel, and furniture,
was lawfully decreed by the said COJ^rt'to be sold by public auction,
and the proceeds thereof to be paid-inlo the registry of the said court;
and the said ship, with her tagW^J. apparel, and furniture, was so sold
by public auction under anJ:bjr virtue of the said decree for the sura
of 830?., and the said sunl'was paid into the registry of the said court;
and thereupon the 8aid*:qaose came on for hearing before the judge
of the said court, ^n^'.fhe said judge pronounced for the damage
proceeded for, epnderrihed the proceeds of the said vessel Leo and
freight therein, a'ft(J in costs, and directed the sum of 957t 4s. 6rf.,
being the balarntJe'bf the said proceeds of the said sale and the amount
of the saicJ'Crdight (after payment of the lawful expenses of the .said
marshal jorcfefea by the said court to be paid to him the said marshal),
to be* -paid' to the plaintiffs; and the said sum was so paid out to the
pl^intffTs': and that all things had been done and performed, and all
timfei liad elapsed, necessary to make the said proceedings in the said
Admiralty Court valid and effectual in the law, and binding upon the
plaintiffs and the defendants respectively ; and that the said proceed-
ings, and every of them, were instituted by the plaintiffs, and the said
decree made in favour of the plaintiffs, in respect of and concerning
the same cause of action in the declaration sued on, and not otherwise.

Second replication to the second plea, — that the damages sustained
by the plaintiffs by reason of the breach in the declaration mentioned,
♦1021 S^^^^'y exceeded *the said moneys, being the balance of the
-' proceeds of the said sale and the amount of the said freight, in
the said second plea mentioned, and therein alleged to have been paid
out to the plaintiffs: And the plaintiffs further said tbat they sued, not
for the recovery of the said moneys so paid out to the plaintiffs as in
the said second plea mentioned, or in respect of the causes of action
thereby satisfied, but in respect of the residue of the said damage
sustained by them by reason of the said alleged breach.

The plaintiffs also demurred to the second plea, the ground of de-
murrer stated in the margin being " that the judgment of the said
High Court of Admiralty is no bar to this action, and that the said
second plea does not show any satisfaction of the claim of the plain-
tiffs." Joinder.

Third plea, — that the causes of action in the declaration mentioned
accrued after the passing of the Merchant Shipping Act, 1854 (17 &
18 Vict. c. 104), and while the said act was in force and the provisions
thereof in respect of the matters in this plea mentioned ; that the de-
fendants then were the owners of the said ship Leo, then being a sea-
going ship, and that the causes of action in the declaration mentioned
were in respect of loss or damage by reason of improper navigation
of such sea-going ship caused to the said ship of the plaintiffs, and
the cargo, tackle, apparel, and other furniture, goods, chattels, and
effects on board the said last-mentioned ship ; and that such loss or
damage as aforesaid occurred without the actual fault or privity of the
defendants or either of them ; and that the value of the said ship and
the freight due or to grow due in respect of such ship during the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 102

voyage which at the time of the happening of the said loss or damage
was in prosecution or contracted for, was a sum of money, to wit, the
sum of 9671. 45. 6rf., and the *defendantfl paid such last-men- r^-iAo
tioned sum to the plaintiffs before suit. L

The defendants also demurred to the second replication to the second
plea, the ground of demurrer stated in the margin being, "that the
judgment of the said Court of Admiralty is a bar to the whole action
and to the matters mentioned at the end of the said replication."
Joinder,

Archibald, for the plaintiffs.(a) — It appears from the record that the
owner of the cargo alone intervened in the Admiralty Court : the
owners of the ship did not appear : and this action is brought to
recover the difference between the amount recovered in the suit in
that court and the damage actually sustained by the plaintiffs in con-
sequence of the defendants' negligence. The judgment in the suit in
the Admiralty Court, which is a judgment in a proceeding in rem,
affords no answer to the plaintiffs* claim. The plaintiffs are clearly
entitled to recover to the extent of the value of the defendants' vessel
immediately before the collision: Brown v. Wilkinson, 15 M. & W.
391. There are two cases in the Ac^miralty *Court where r*iA4
recourse was allowed against the ship, on the personal proceed- ^
ing proving fruitless. In the case of The Bengal, W. H. Henderson,
Swabey's Adm. R. 468, a personal action (by the master for wages)
proving fruitless, he was allowed to proceed in rem against the ship. So,
in The John and Mary, Swabey's Adm. R. 471, the plaintiff, having sued
in a cause of collision at common law, and recovered a verdict, was
held to be entitled, on the defendant proving insolvent, to sue the
ship in the Court of Admiralty, even after the ship had been trans-
ferred to a third party.

Brett, Q. C, for the defendants.(6) — There were two courses open
to the plaintiffs. They might have sued the owners in personam, in
which case they would have recovered all the damages they had sus*
tained from the collision; or, if they chose to proceed in rem, thereby
obtaining the great advantage of seizing the ship and so insuring the
damages to the extent at least of the value of the ship, they must be

(a) The pointf marked for argument on the part of the plaintiffs were ai follows : —
'' That the seeond plea is bad, and the second replication to it is good : That the proceedinga
in the Admiraltj Court set forth in the second plea, being proceedings merely in rem, constitute
DO aasver either in bar or estoppel of the present action, which is a proceeding in personam :
That the second plea does not allege or show any satisfaction or merger of the claim of the
pliiDtiffs : That it is admitted by the second plea, or appears by the second replication to it,
that the plaintiffs have only received a partial satisfaction ; and that the plaintiib are entitled^,
after proceeding against the ship, to proceed against the defendants personally untU the damages
^ iBilained bare been completely satisfied."

(6) The points marked for argument on the part of the defendants were as follows : —
" 1. That the second plea is good, and that the second replication to it Is bad i
" 2. That the proceedings in the Admiralty Court mentioned in the second plea obnstitute m
ftill answer to the action, and show a bar or estoppel thereof; and that a personal action can-
set be engrafted upon an action in rem :

" 3. That the defendants, baring elected to take their remedy by the proceedings in the AdmU
nliy Conrty are barred from proceeding in a second action, the parties and cause of action balog

"4. That the seeond plea shows a tail satisfaotion and merger of the plaintiffs' claim :

" S. That, area if it be admitted on the pleadings that the plaintiffs hare reeeired a partly

istisfaetion only, yet the proceedings, Judgment, and decree In the Court of Admiralty an a

Wr to the whole action at law."
C, B. K. 8 , VOL, XV,— 6

104 NELSON V. COUCH. T. V. 1868.

*1051 ^^"*®^^ ^^^^ •that: they take their chance whether or not the
J ship will produce enough to satisfy their entire damages:
Coote's Admiralty Practice 7, 8. Such an action as this has never
yet been maintained: it is not competent to a party to sue in personam
after having elected to sue in rem. [Wille?, J., referred to the case
of The Bold Buccleugh, Harmer, app., Bell, resp., 7 Moore's P. C. 267.
There, a Scotch steamer ran down an English vessel in the Humber.
An action was commenced in the Court of Admiralty in England by
the owners of the English vessel against the owners of the steamer,
and a warrant of arrest issued against the ship; but, before the ship
could be arrested, she had sailed for Scotland. A suit was then com-
menced by the owners of the English vessel against the owners of the
steamer in the court of session in Scotland for the damage, and the
steamer was arrested under process of that court, but subsequently
released upon bail. Afterwards, and pending these proceedings, the
steamer was sold, without notice to the purchaser of this unsatisfied
claim against her. The proceedings in the court of session were still
pending, when the steamer, having come within the jurisdiction of
England, was again arrested under process of the High Court of Admi-
ralty in England, and an action for damage commenced in that court for
the same cause of action as was still pending in Scotland, instructions
being sent to Scotland to abandon the proceedings in the court of session.
The owners of the steamer appeared under protest in the Admiralty
'Court, and pleaded, amongst other pleas, lis alibi pendens. It was held
by the judicial committee of the Privy Council that the plea was bad, as
the suit in Scotland was in the first instance in personam, the proceedings
being commenced by process against the persons of the owners of the
•»1061 ^^^^^ (^^® defendants), 'and the arrest of the steamer only col-
^ lateral, to secure the debt, while the proceedings in the Admi-
ralty Caurt in England were, in the first instance, in rem, against the
vessel, and therefore, the two suits being in their nature different, the
pendency of one suit could not be pleaded in suspension of the other.]
In the case of The Kalamazoo, 15 Jurist 885, an American ship was
arrested in a cause of collision promoted in the Admiralty Court by
the owners of the ship and cargo damaged, and bailed for 3500Z., and
the damage pronounced for, and referred to the registrar and mer-
dhants. It being subsequently ascertained thot the damage to the
•cargo exceeded 4800^., the owners arrested the ship in a fresh action for
the difference. Dr. Lushington said : "I think, when a party has once
proceeded before the court, and recovered judgment, he is barred from
proceeding in a second action. But it is said that the party ought to
•receive the whole amount of the damage done, to the full extent of
the value of the ship in fault. To this there are two answers. First,
it was their. own fault if they did not arrest her to the full value of
the ship; and, secondly, there is no authority to show, that, having
obtained bail for the ship, you can afterwards proceed against the
owner to make up the amount of the loss. I cannot think that I can
engraft a personal action upon an action in rem." There, the plaintiffs
had elected their remedy, and they had obtained a decree for all the
damages they claimed in the first action. [WiLLES, J. — Dr. Lushing-
ton refused to engraft upon an action in rem a second action in rem.] In
ike case of The Hope, Hepburn, 1 W. Rob. 15i, the value of the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 106

vessel condemned being insufficient to answer the damage, the same
learned judge held that it was not competent for the court to engraft
upon the proceeding in rem a personal action against •the owner ^^^ ^^
of the vessel to make good the excess of damage beyond the pro- L ^^ '
ceeds of the ship. " Looking," he says, " to the general principles upon
which the proceedings in this court are conducted, it is, I apprehend,
wholly incompetent for the court to engraft a personal action against
the master as part-owner of this vessel upon the proceedings which
have already taken place in this cause. It may be true, as stated, that
the proceeds of the Hope will prove inadequate to answer the full
amount of the damages which the owners of the Nelson have sustained.
If so, it is undoubtedly a hardship upon these owners; but this cir-
camstance will not entitle me to exercise a jurisdiction in their behalf,
which, according to my own impression, I clearly do not possess. I
am not aware of any case in which this court, in a proceeding of this
kind, has ever engrafted upon it a further proceeding against the
owners, upon the ground that the proceeds of the vessel proceeded
against have been insufficient to answer the full amount of the damage
pronounced for." [Bylbs, J. — There is nothing there to show that the
jurisdiction of this court is affected by the proceedings in the Admiralty
Court.] Having obtained a decree of a court of competent and con-
current jurisdiction, — a court whose decrees and orders are to have
the effect of judgments at common law : 24 Vict. c. 10, s. 15, — it is
contrary to reason to bold that a party shall be entitled to proceed for
the same cause of action in another court The case of The Yolant,
Merchenty 1 W. Bob. 383, 1 Notes of Cases 503, is to the same effect
as the case of The Hope, Hepburn. In the two cases in the Admiralty
Court relied on by the other side, there had been no execution upon
the judgment in the first proceeding. Whereas, this, it is submitted,
is precisely the same as if, after judgment and execution in an action in
one common-law court, a *second action were brought in another r«|Ao
court in respect of the same cause. In Perry v. Barker, 8 Ves. ^
527, 13 Yes. 198, after foreclosure and sale of the mortgaged estate, the
Court of Chancery granted an injunction to restrain the mortgagee
from seeking to recover the difference at law. In the case of the
Fortitude, Henrickson, 2 Dods. Adm. B. 58, it was held that parties
who have abandoned a former suit instituted by them to compel pay-
ment of certain alleged bottomry-bonds, will not be permittee!, unless
on strong grounds shown, to carry on proceedings a second time to
enforce a demand founded on the very same bonds. By the Merchant
Shipping Act, 17 & 18 Vict. c. 104, s. 504, the owner's liability is in
no case to exceed the value of the ship, where the event has happened
without his actual fault or privity. That provision will be futile, if a
proceeding of this sort be permitted.

Archibald^ in reply, was stopped by the court

WiLLSS, J. — I am of opinion,— and my Brother Williams, who was
obliged to go to Chambers^ desired me to say that he concurred with
us, — that this plea cannot be sustained. The plea sets up the excep-
tion of res judicata, and therefore must show either an actual merger
or that the same point has already been deoided between the same
parties. This, I apprehend, is clear from the authority of Gomyns's
jDigest, Action (K. 1.), and the following divisiona. But it is unneoes-

108 NELSON V. COUCH. T. V. 1863.

Bary to refer to the ancient authorities, further than to say that they
are entirely consistent with the modern ones, as well as with the rule
of the Civil law. Where the cause of action is the same, and the
plaintiflF has had an opportunity in the former suit of recovering that
which he seeks to recover in the second, the former recovery is a har
*1091 *^ ^^^ latter *action. To constitute such former recovery a har,

J however, it must be shown that the plaintiflF had an opportu-
nity of recovering, and but for his own fault might have recovered, in
the former suit that which he seeks to recover in the second action.
Every one is familiar with the case of a party who brought an action
for the recovery of 1000?., and for default of evidence recovered 5?.
only, and then brought a second action to recover the balance ; and
the recovery in the former action was held to be a bar to the latter, qu
the ground that the plaintiff had had an opportunity of recovering in
the first action the whole of his demand, and that, regard being had tt)
the shortness of life, it was unreasonable to allow a defendant to be
vexed a second time for the same cause.(a) But, in order that it may
be a bar, the circumstances must be such that the plaintiff might have
recovered in the former suit that which he seeks to recover in tfco
second. The authorities in the Civil law upon this subject are col-
lected by Vice-Chancellor Knight Bruce in a very remarkable jud^(*
ment in a case of Barrs v. Jackson, 1 Y. & C. C. C. 588 et seq.(6) If
that be the true principle, let us see what the former suit here w.is.
Now, the former suit, as explained in the judgment of the Privy
Council in the case of The Bold Buccleugh, 7 Moore's P. C. 267, was
for the purpose of establishing a maritime lien of the plaintiff by
reason of the misconduct of the owners of the vessel which had caused
the damage, and a proceeding which had for its object the obtaining
from the proceeds (or the bail) satisfaction for the injury inflicted.
What is the object of the present action ? It is to recover compensa-
tion from the defendants for the damages which the plaintiffs hav^
*1101 sustained by reason of the ♦injury done to their ship. It is

•' obvious that these two are not identical, unless the proceeds of
the sale of the defendants' vessel are equal to or exceed the amount
of the damages sustained by the plaintiffs' vessel. This plea does not
supply us with the means of ascertaining that fact: there is, therefore,
an entire absence of the essential part of a plea of res judicata. It is
a condition of such a plea that it should show that the first proceeding
was one in which the plaintiff might have recovered that compensa-
tion which he seeks to recover in the second. We have been pressed
by Mr. Brett to say that the former judgment must necessarily oe taken
to have been for the whole of the damages which the plaintiffs have
sustained. That, however, would I think be putting a novel and
inconsistent construction upon the judgment of the Admiralty Court.
It comes to this. Here is a lien which it requires the intervention of
the court to make available, by decreeing a sale. If a person having
an ordinary lien upon a chattel; with a power of sale, whether bv
agreement, or by act of parliament, were to sell it for a sum which
satisfied only one-half of the debt, would he be prevented from suing
in a court of law for the recovery of the other half? Clearly no.

(a) Sm Barber «. Lunb, 8 C. B. V, 8. 95 (B. C. L. B. roL QS).
(») And tet Bam v. JMkMB, 1 PhlUlpt W».

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 110

Then, why should the plaintiflFs be precluded here? Several cases
have been referred to, where judges of great eminence and experience
have refused to allow a proceeding in personam against the owner in
the Admiralty Court to be engrafted upon a proceeding in rem, saying
that it was contrary to the practice of that court.(a) It may very well
be, looking to the *reluctance expressed by Sir William Scott, r#i-i i
tn the case of the Fortitudo, 2 Dods. Adm. R. 58, to permit a '-
second proceeding to enforce payment of bottomry-bonds, after the
abandonment of a former suit instituted for the same purpose, that
there is something in the constitution and practice of the Admiralty
Court which militates against a proceeding like this. But there is
certainly no such reluctance in the common-law courts. Further, there
is the authority of Dr. Lushington in the case of The Hope, Hepburn,
1 W. Rob. Adm. Cas. 154, that it is not competent for the court to
eii.5raft upon a proceeding in rem a personal action against the master
(also a part-owner), to make good the excess of damage beyond the
proceeds of the ship. The learned judge there expressly based his
judgment upon the general principles upon which the proceedings in
iho Admiralty Court are conducted. But, in the case of The John
and Mary, Swabey's Adm. Rep. 471, the plaintifif, having sued in a
cause of collision at common law, and recovered a verdict, was allowed,
insolvency intervening, to assert his lien in the Admiralty Court upon
the ship, even after she had been transferred to a third party. It
w^ould seem to be a very extraordinary and somewhat inconsistent
thing, if the proceeding in personam should be held no bar to a sub-
sequent proceeding in rem, and yet the proceeding in rem should be
held a bar to a subsequent proceeding in a common-law court to recover
what the {daintiff had failed to recover in the former suit. I* must
oomfess I see no reason why the plaintifl& should *not be al- r»i -jo
lowed to recover the balance of the damage they have sus- ^
taiued by a proceeding in this court. Mr. Brett did not very much
rely on the Merchant Shipping Act. No doubt he will have the full
b'^nefit of its provisions on a future occasion.

IJyleSj J. — I am of the same opinion. This is like the case of a
m»a who, having a debt secured by a pledge or mortgage, necessarily
resorts to legal proceedings to make the pledge available. Having
done so, and thus realized only a portion of his debt, I see no reason
why he should not have recourse to a common-law court for the
recovery of the residue. The right to proceed in the Admiralty Court
in rem, after the personal remedy has proved abortive, has been twice
recognised in Swabey's Admiralty Reports, — once in the case of the
master's wages (The Bengal, p. 468), and again in the case of a col-
lision (The John and Mary, p. 471). The only difficulty here is, that
the damages may exceed the value of the ship. The defendants, how-
ever, could not plead to damages : they could only rely upon the

(«) "T1i« warrant of arrest," aays Sir William Seott in that case, «is confined to the ship;
it goes no farther. It appears to me, therefore, that no personal liability beyond thai value
eoold be engrafted npon sneh a mode of proceeding ; and for this obyious reason, that, if I were
to engraft such personal responsibility npon the owner, the original process woold not Justify
inch proceeding. Not only the original process, but the appearance given by the individual
himself, would not justify it, because he has appeared only to protect 'tis interest in the ship,
both by the form of the warrant and the form of his appearance."

112

NELSON V. COUCH. T. V. 1863.

decree in the former suit as a bar. And, for the reasons already given,
I think it is no good plea in bar. Judgment for the plaintiflFs.

That the partial recovery of a debt
obtained by a resort to a pledge^ does
not preclude the creditor from suing
for the residue of his claim, which was
the point determined in the principal
case, is also involved in the decision of
Ayers v. Watson, where the right to
resort to additional security for the
debt was not only conceded as a re-
medy independent of the controversy,
but was assumed as the ground upon
which an admission made during the
trial that the creditor had additional
security, was held not to be an estoppel.
The undercurrent of the argument in
favour of an estoppel, was that as the
creditor might avail himself of the
security, it should go in reduction of
the amount to be recovered, and would
thus constitute a partial defence. But
the court refused to entertain the pro-
position that the security ought^ before
it was collected, to be treated as a fund
which should contribute to the liqui-
dation of the debt; and unless they
maintained that notion, the existence
of the security did not become mate-
rial, and the admission, in consequence,
being irrelevant, could under no cir-
cumstances operate as an estoppel. The
case was this : A. secured a debt by
mortgaging a ship to B., who took pos-
session ; C. obtained judgment against
A. and levied on the ship; B. replevied,
and C. defending in sheriff's name,
called A., who testified that he had also
given B. a ground-rent mortgage as
additional security for the debt. A.
was held not estopped by this admis-
sion in a suit on the ground-rent mort-
gage from denying that the mortgage
was a security for the debt : 25 Leg.
Int. (Supreme Court of Pa. 1868) 316.

It is mentioned incidentally in the
decision that the defendant Watson had
included in the sum recovered by him
in the New York replevin suit, the
92800 secured by the'ground-rent mort-
gage as a part of the debt covered hy
the mortgage on the ship. Since this
remark was made, however, the New
York Court of Appeals has reversed
the judgment by the Supreme Court,
on the ground that the judge's charge
was inconsistent with the evidence;
which consisted of the testimony of
Maximilian Goepp, Esq., who declared
the mortgage invalid by the law of
Pennsylvania. The judge ignored this
testimony, and charged the jury tlut
the mortgage was under the circuos-
stances valid by the law of Pennsyl-
vania. The Court of Appeals evidently
concurred in the accuracy of the judge's
statement of the law of Pennsylvania, bat
pronounced it unwarranted by the evi-
dence : Watson v. Campbell, New York
Daily Transcript, Jan. 15, 1869. It
has, from the earliest times, been recog-
nised in Pennsylvania as one of the
exceptions to the rule which requires
an immediate change of possession that
the mortgage of a ship at sea is valid,
provided the mortgagee takes posses-
sion as soon after her arrival as he con-
veniently can : Morgan's Ez'rs v. Bid-
die, 1 Yeates (1791) 3.

Goodrich v. The City, was the con-
verse of the principal case. The plain-
tifif there sought first to recover at
common law in the state courts for the
loss of his vessel, and subsequently he
endeavoured to recover for the same
loss in admiralty, but was precluded
by the judgment against hun in th»
state court: 6 Wall. (1866) 566.

COMMON BENCH BEPORTS. (16 J. SCOTT. N. S.) J 13

♦CLAUDE BOUILLON et C'« v. LUPTON. June 22. ['US

Tbree steamers, the Bourdon, the Papin No. 1, and the Papin No. 6, which were intended
Sor the naTigation of the Danube, were insured "at and from Lyons to Galatz/' with leave to
eall at all poru and places in the Mediterranean for all or any purpose, beginning the adventure
at Lyons, itc, with a declaration that " it should be lawful for the said ships to proceed and
■ail to and touch and stay at any ports or places whatsoever, and with leave to tow and be
towed, without being deemed any deviation," Ac, — toarranttd to kail on or be/ore the 15th of
Aiff»9t, 1861. .

The Papin No. 6 left Lyons on the 24th of July, and arrived at Marseilles on the 30th. The
Bourdon and Papin No. 1 left Lyons on the 2d of August, and arrived at Marseilles, the former
on the 7tb, the latter on the 8th. All three vessels were in a fit and proper state for the voyage
down the Rhone to Marseilles, but, from the nature of the navigation, they could not, on leav-
ing Lyons, be in a state of readiness, — as to masts and sails, chains and anchors, sea crew, &o ,
—for the sea portion of the voyage to Qalatz.

They all left Marseilles properly manned and equipped for the residue of the voyage on the
23d of August, — the intermediate time having been consumed in the sea-equipment, and in pro-
earing the surveys and permit to depart required by the French law, which could only bo
obtained at Marseilles. This delay the jury found not to have been unreasonable : —

Held, that both the implied warranty of sea- worthiness, and the express warranty to sail on
or before the 15th of August, were complied with.

As to the Papin No. 6, which arrived at Marseilles on the 30th of July, it appeared that she
might have been got ready for sea several days earlier than she was, but that the captain deemed
it prudent to detain her at Marseilles in order that all three vessels might depart in company.
The jury having found that this was a reasonable cause of delay as to that vessel,— the crnirt
refused to disturb their verdict

This was an action brought by the plaintiffs, a company duly ccm-
stituted and established in Paris as a socidt^ en commandite accordi/i|v;
to the laws of France, and known s^ the Franco-Serve Company, upon
three policies of insurance.

The first count of the declaration stated, that, by a policy of insur-
ance, bearing date the 6th of September, 1861, the plaintiffs, by
Messrs. Morice &; Dixey as their agents, caused themselves to be
insured, lost or not lost, at and from Lyons to Oalatz, and while there
for ten days, with leave to call at all ports and places in the Mediter-
ranean for all or any purpose, upon the body, tackle, apparel, ord-
nance, munition, artillery, boat, and other furniture of and in the ship
or steamer Bourdon, beginning the adventure at Lyons as above, and
continuing the same during the said voyage and until the said ship
and premises should be arrived at Galatz, and while there for ten days,
against perils of the seas and certain other perils and adventures as
therein mentioned : and it was thereby *declared that it should r^-i 1 4
be lawful for the said ship and premises in that voyage to pro- •■
ceed and sail to and touch and stay at any ports or places whatsoever
and wheresoever, and with leave to tow and be towed, without being
deemed any deviation, and without prejudice to that insurance; and
that the said ship and premises were and should be valued at ** On hull,
&c., valued 3000?.; on machinery, valued 3000/.,— 6000?. ;" to pay aver-
age on each as if severally insured, and general average as per foreign
statement, if so made up : And by the said policy the said ship and pre-
mises were warranted free from capture and seizure and the conse-
quences of any attempt thereat : And the said ship was warranted to sail
<m or be/ore the loth day of August, 1861 : And by a memorandum there
under written the said ship and premises were warranted free from
average under 3 per cent, unless general or the ship be stranded : Aver-
ment, that the defendant had notice of all the premises, and thereupon.

114 BOUILLON V. LUPTON. T. V. 1863.

in consideration of a certain premium paid to him by the plaintiffs for
the insurance of lOOZ. Upon the said ship and premises in the said policy
mentioned, the defendant subscribed tne said policy for the said sum
of lOOZ., and became an insurer to the plaintiffs of and upon the said
ship and premises to that amount, And upon the terms and conditions
of the said policy; that the plaintiffs were then and from that time
until and at the time of the loss thereinafter mentioned interested in
the said ship and premises to the amount of all the moneys by them
insured thereon; that the said Morice & Dixey effected" the said policy
as their agents and on their behalf; and that the plaintiffs performed
and complied with all warranties in the said policy contained ; that the
said ship with the premises on board thereof departed on her said
voyage, and while she was proceeding on the said voyage, and
*11^1 *^^r'^o ^'*® continuance of the said risk, the said ship and
-I premises were, by perils insured against, wholly lost ; and that
th.^ plaintiffs did all things on their part to be done, and all things
h tppened, and all times elapsed, to entitle the plaintiffs to be paid by
On defendant the said sum of lOOZ. so insured by him as aforesaid;
bvt that the defendant had not paid the same.

The second count was upon a policy in the like terms and for the
jjyMe amount on the ship or steamer "Papin No. 1 :" and the third
CO mt was upon a policy in the like terms and for the same amount
cu the ship or steamer " Papin No. 6." There was also a count for
mc^ney received by the defendant for the use of the plaintiffs, and for
money found due on accounts stated.

The defendant pleaded, as to the first, second, and third counts, — firsts
that the plaintiffs did not cause themselves to be insured as in those
CO ants respectively mentioned, nor did the defendant become an
ip.Murer to the plaintiffs as in those counts respectively mentioned, as
therein respectively alleged, — secondly, that the plaintiffs were not
interested in the respective subject-matters of insurance in those counts
mentioned, as therein respectively alleged, — thirdly, that the said
ships and premises respectively did not depart on the voyages insured,
a « in those counts respectively alleged, -^fourthly, that the said ships
a-'d premises respectively were not, nor was any part of the same
respectively, lost by the perils insured against, as in those counts
respectively alleged, — fifthly, that the said ships and premises respec-
tively did not sail on or before the 15th day of August, 1861, within
the true intent and meaning of the warranties contained in the said
policies respectively, — sixthly, that, at the time when the said ships
♦1161 ^^^ premises respectively departed and set *sail on the voyages
^ respectively insured by the said policies respectively, they were
respectively not seaworthy for the respective voyages, — seventhly,
that, before the respective losses in those counts mentioned, the said
ships and premises respectively wrongfully and improperly delayed
proceeding upon and deviated from the voyages respectively insured,
— and, to the money counts, eighthly, never indebted. Issue thereon.

The cause was tried before Cockburn, C. J., and a special jury, at
the last Spring Assizes at Kingston, when the following facts were
proved and admitted: — The plaintiffs are a French socidte en com-
mandite, whose object, amongst other things, was, to run steamers on
the river Danube. For this purpose they purchased the steamers in

COMMON BENCH REPORTS. (15 J. SCOTT. N. 8.) Il6

question, the Bourdon, the Papin No. 1, and the Papin No. 6, which
were or had been river steamers built for and employed in the navi-
gation of the Rhone, and were then at Lyons: and, in order to
strengthen them and put them into condition for performing the sea-
voyage to the Danube, they had them (and a fourth yessel called the
Creuzot) repaired under an agreement whereby the three first-named
vessels were to be completed and ready to depart by the 15th of
July, 1861.

In the month of July, 1861, the plaintiffs, through their agents,
effected the three policies of insurance in question on the hull and
machinery of the three steamers Papin No. 1, Papin No. 6, and Bour
don, then at Lyons. The policies were subscribed in the usual manner
by the defendant, an underwriter at Lloyd's.

The steamer Papin No. 6 left Lyons on the 24th of July, and the
Papin No. 1 and the Bourdon on the 2d of August, 1861.

The first part of the voyage from Lyons to Galatz consists of a
river voyage down the Rhone for a *distance of about three hun- r#i 1 7
dred miles, viz. from Lyons to Aries, at or near the mouth of ^
the Rhone. This navigation can be performed only by vessels of
light draught and without masts or standing rigging, in consequence
of the shallowness of the water and of there being several bridges
across the Rhone; and, according to the French law, it is necessary
that there should be a special permit for this river voyage, and that
the vessel should be manned by a competent river crew.

It was admitted, on behalf of the defendant, that the vessels were
when they left Lyons, and continued to be throughout the river navi-
gation, in a fit, proper, and sea- worthy state and condition for the
unvigation of the river.

The vessels, on leaving Lyons, had their masts on board, but none
of the said masts up; it being, as before mentioned, impossible to
descend the Rhone with the masts up, on account of the bridges
over the river. The steamers, at the time they left Lyons, were not
furnished with rigging, sails of any kind, compasses, chains, or sea-
anchors, — all of which were indispensable for the voyage to Galatz;
and they were manned with river crews, and not with sea crews. The
''^gg^ng* sails, compasses, chains, and sea anchors for such voyage
could not be purchased at Lyons, but might, if necessary, have been
purchased at Marseilles or some other seaport, and sent up to Lyons.
A crew for a sea voyage could not be procured at Lyons. Chains
and sea-anchors could not have been carried on board the said steamers
during the river navigation, on account of the draught of water.

The steamer Papin No. 6 reached Aries on the 28th of July, left it
on the 29th, and reached Marseilles on the same night, and was noti-
fied on the following day. The Bourdon reached Aries on the 6th of
August, left Aries on the same day, arrived at Marseilles on the 7th,
and •was notified on the following day. The Papin No. 1 r#-«^ g
reached Aries on the 8th of August, left Aries on the same '■ .
day, and arrived at Marseilles and was duly notified on the 9th.

It was necessary, for the reasons and purposes hereinafter men-
tioned, that all the three steamers should proceed to and stay at Mar-
seilles.

Aries is a port on the Rhone a little above the mouth of the river,

118 BOUILLON V. LUPTON. T. V. 1863.

and Marseilles is distant about thirty miles from the mouth of the
Ehone. According to the French law, the river navigation stops at
Aries ; from Aries to Marseilles is considered a sea voyage. The
voyage between these two places is a coasting voyage of about thirty-
two English miles.

The three steamers left Aries in the same condition (except as to
the crews) in which they left Lyons. They were not, nor was either
of them, manned with complete sea crews ; but some additional sailors
were taken on board each of them at Aries, to- assist the several river
crews in bringing the steamers round from Aries to Marseilles; and
each vessel was under the charge of a skilled and competent sea cap
tain.

Masts, ropes, chains, and sea-anchors could have been obtained at
Aries, but not so conveniently or expeditiously as at Marseilles. A
sea crew might be obtained at Aries. Compasses and sails could only
be obtained at Aries by ordering them from Marseilles. There art.
no persons at Aries competent to adjust the compasses, which wa.'i
necessary in the case of each of the three steamers.

When the steamers left Aries, and throughout the voyage to Mai •
seilles, they were in fit and suflScient state and condition to perform
that portion of the voyage; but they were not sea-worthy for tl.<5
voyage to Galatz : and some alteration in their rudders was nec^f.-
sary.

♦1191 *^^^ French law requires that every vessel, before putting:
-' to sea, should undergo two inspections by a commission of
"capitaines visiteurs;" that she should receive on the first occasior a
certificate of survey enumerating what (if any) repairs, alterations, or
additions are necessary to render her fit to put to sea ; and that, (ri
the second inspection, she should receive a certificate of fitness "^br
sea, reciting the requisitions made in the first, and specifying that
they had severally been complied with. In all cases the two inspec-
tions are indispensable, even though upon the first inspection no re
pairs, alterations, or additions may have been ordered. The French
law, in the case of a steamer, further requires that there should be
another inspection by other officers, to test her fitness for sea in re-
spect to her machinery, and to certify thereto. When these and
other provisions of the law have been complied with, the vessel, un-
less she is navigating backwards and forwards between fixed ports
under a regular license, must obtain a "permit de partir" before she
will be allowed to leave port.

The commission of inspection for all ships and steamers to sail
from the Mediterranean coast of France, sits at Marseilles, where the
commissioners reside.

In the case of the three steamers in question, the several inspec-
tions and certificates above enumerated were necessary ; and the
same could not have been had at any other place than Marseilles.

Upon the arrival of the vessels respectively at Marseilles, the fur-
nishing them and fitting them out with what was required for the
voyage to Galatz was commenced and proceeded with. The masts
and rigging were set up ; and the sails were put on board and fixed.
The measurements for these sails had been taken at Lyons by a ship-

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 1J9

broker of Marseilles in the early part of *July ; and the sails r»i 90
were ordered to be and were ready at Marseilles for the seve- ^
ral vessels at the times of their respective arrivals at that port. Chains
and sea-anchors were also put on board the several steamers, and their
compasses were adjusted.

The crew of the Papin No. 6 were hired and went on board her at
Marseilles on the 30th of July ; that of the Bourdon were hired and
went on board her at Marseilles on the 7th of August ; and that of
the Papin No. 1 were hired and went on board her about the 16ch or
17th of August.

Application was made on the 13th of August to the "capitaines
visiteurs" to inspect all the three vessels. The first survey of those
officers took place on the 16th of August. The certificates of such
surveys were signed on that day, and registered in the registry office
of the Tribunal de Commerce at Marseilles on the 20th. The second
survey of the "capitaines visiteurs" on each of the three vessels took
place on the 19th of August; and the certificates of such last-men-
tioned surveys were registered as required by the French law on the
20th.

The " r61e d^^quipage," or muster-roll, was presented for signature
and duly signed on the 19th of August. The French law requirijs
that the said r6le d'^quipage should be signed before the sailing
license is granted. The sailing license or permit de partir was appli«3d
for on the 19th of August ; and a provisional permit, which was suffi-
cient to authorize the vessels' sailing on the voyage, was granted on
the 20tb.

The three vessels were ready to sail for Galatz on the morning of
the 20th of August, and not before.

The Papin No. 6 might have been properly equipped, certified, and
ready to sail from Marseilles some days before the 20tn of August : but
her equipment was not hastened as much as it might have been, because
*it was deemed prudent and reasonable, for the common inte- r^ioi
rests of the underwriters and the assured, that she should be ^
delayed for the purpose of sailing in company with the other two
vessels. A captain m the French navy gave evidence to this effect.

The three vessels were detained by stress of weather at Marseilles
from the 20th of August until the 23d, on which day they set sail in
company.

It was admitted on behalf of the defendant, that, at the time the
three vessels so left Marseilles, they were in all respects sea- worthy for
the voyage to Galatz. No delay or deviation took place from the time
of the vessels' leaving Marseilles.

The three steamers all went down together in the Black Sea on
the 14th of October, 1861, the first day they got into the Black Sea,
and within a day's sail of their destination, and were totally lost.

The Lord Chief Justice left it to the jury to say whether there was
an unreasonable delay in the fitting out of all or any of the said three
Btearaers at Marseilles, and requested the jury, in the e\ent of their
thinking, that, in the case of the Papin No. 6, there had been unrea-
sonable delay, to find specially whether it was prudent and reasonable,
for the common interest of the underwriters and the assured, that the

Iftl BOUILLON i;. LTJPTON. T. V. 1863.

I'ipin No. 6 should be delayed for the company of the other two
vessels.

The jury found that there was no unreasonable delay as regarded
the Papin No. 1 and the Bourdon ; and, as regarded the Papin No. 6,
that the delay was justified by the fact of her waiting for the other
vessels.

Upon these findings, his Lordship directed the verdict to be entered
for the plaintiffs; reserving leave for the defendant to move to enter
the verdict for him as to all or any of the vessels, upon the grounds, —
♦1921 ^^^^' ^^^* ^^® warranties as to the sailing on or before *the 15th
^ of August, 1861, were not complied with, — secondly, that the
vessels were bound to sail on or before that day, properly equipped
for the voyage, without being afterwards delayed for the purpose of
preparations and being made ready for the voyage, — thirdly, that the
vessels were not sea-worthy at Lyons, nor at the time of their com-
mencing their voyage upon the open sea: and, as to the vessel Papin
No. 6, on the further ground that the delay at Marseilles in waiting
for the other vessels was not justifiable.

Bovill, Q. C, in Easter Term last, obtained a rule nisi accordingly,
or for a new trial, on the ground that the verdict was against the evi-
dence on the last point, viz. as to the Papin No. 6. He cited Ridsdale
V. Newnham, 4 Campb. Ill, 8 M. & Selw. 456, Pettigrew v. Pringle, 8
B. & Ad. 514 (E. C. L. R. vol. 23), and 1 Arnould on Insurance, 2d
edit. 643. [WiLLKS, J., referred to Biccard v. Shepherd, 14 Moore's
P. C. 471.]

Horace Lhyd and Wathin Williams showed cause. — Two questions
MV. presented for consideration in this case, — first, whether there has
l)'3en a compliance with the warranty " to sail on or before the 15th
<»'/ August," — secondly, whether there was a deviation, more especially
OA the part of one of the vessels, the Papin No. 6, by an unreasonable
dfilay at Marseilles after the commencement of the voyage. The
M'fcole law upon the subject of the warranty to sail on or before a given
do.y will be found in the cases of Ridsdale v, Newnham, 4 Campb. Ill,
3 M. & Selw. 456, Pettigrew v. Pringle, 8 B. & Ad. 514 (E. C. L. R.
V(»l 23), Cochrane v. Fisher, 2 C. & M. 581, 4 Tyrwh. 424 (in error, 1
(5 M. & R. 809, 5 Tyrwh. 496), and Lang v. Anderdon, 8 B. & 0. 495
(K. C. L. R. vol. 10), 5 D. & R. 898. The result seems to be, that, in
oi der to comply with a warranty to sail, the ship must not only have
broken ground on or before the day, but she must have done
♦1231 **^^ ^^^^ *" intention of at once proceeding on her sea voyage,
^ being then in a state of perfect readiness for it. Seaworthiness
is a relative term, having reference to the particular perils the ship
may be expected to encounter : Gibson v. Small, 4 House of Lords
Cases 353. Here, the insurance is for a voyage from Lyons to
Galatz, — Lyons being about three hundred miles up the Rhone, and
Galatz about ninety-five miles from the mouth of the Danube (see
Schilizzi V. Derry, 4 Ellis k B. 882), — with leave to call at all ports
and places in the Mediterranean for all or any purpose; and it was
declared " that it should be lawful for the vessels to proceed and sail
to and touch and stay at any ports or places whatsoever and whereso-
ever, and with leave to tow and be towed, without being deemed any
deviation, and without prejudice to the insurance;" The Rhone, as is

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 123

well known, and as the underwriters must be assumed to have known,
is a narrow and swift river, spanned by several bridges, and having
its course obstructed by shoals and mud-banks which make its navi-
gation exceedingly difficult, and only to be performed by a vessel
without masts and having on board a river crew. The facts show
that the vessels, which all left Lyons before the 15th of August, 1861,
started with everything on board and in all respects completely fit for
the voyage down to Aries. It appears also that it was convenient in
the highest degree for the vessels to go to Marseilles for some of the
equipment necessary for the sea portion of their voyage, and absolutely
essential that they should go there for some of them, and especially
for the surveys required by the French law and for the permit de
partir, without which they could not have proceeded to sea. That the
vessels left Lyons in a fit state for the prosecution of the voyage down
the river, is conceded; and it was proved that what was done at Mar-
seilles *was proper and necessary to be done there; and the [-#194
jury have found that there was no unreasonable delay. In ^
Dixon V. Sadler, 5 M. & W. 405, 414, Parke, B., thus lays down f.he
law as to the implied warranty of sea- worthiness, — " In the case of an
insurance for a certain voyage, it is clearly established that there is
an implied warranty that the vessel shall be sea- worthy, by whicl* is
meant that she shall be in a fit state as to repairs, equipment, nnd
crew, and in all other respects, to encounter the ordinary perils of Hie
voyage insured, at the time of sailing upon it. If the insuraiice
atti^ches before the voyage commences, it is enough that the state of
the ship be commensurate to the then risk ;(a) and, if the voyage be
such as to require a different complement of men, or state of equipment^ in
different parts of it, as, if it were a voyage down a canal or river, and
thence across to the open sea, it would be enough if the vessel were at the
commencement of each stage of the navigation properly mamied and
equipped for it,^^ Several cases are referred to as establishing that
principle: and it received the confirmation of the judicial committee
of the Privy Council in the recent case of Biccard v. Shepherd, 14
Moore's P. 0. 471. In the case of an insurance of a vessel on a
voyage to the Greenland fishery, it is well known that part of the
necessary equipment, as well as the crew, are taken on board when
the vessel arrives at the Orkney Islands. There, the warranty to sail
on or before a given day would be complied with by a departure in a
state of fitness for that portion of the voyage. This voyage clearly is
one which is divisible into distinct parts or stages, according to the
rule laid down by Lord Wensleydale ; and it is enough if the vessels,
at the time of their departure from Lyons, were, as the jury have
*found, and as indeed the defendant admitted, in a fit state to r«i 95
undertake the voyage to Aries, and fit on leaving Aries for the '-
voyage to Marseilles. The rule laid down in Arnould on Insurance, §
228, upon the authority of Lang v. Anderdon, 8 B. & 0. 495 (E. 0. L. R.
vol. 10), 5 D. & R. 393, Ridsdale v. Newnham, 4 Campb. Ill, 3 M. &
Selw. 456, and Pettigrew v. Pringle, 3 B. & Ad. 614 (E. C. L. R. vol,
28), applies only to a voyage from port to port In the last- mentioned
case the vessel put into another port, and made that for all essential
purposes the port of departure. This is well illustrated by the case

(a) Annw V. Woodaao, 3 T«aii(. 30 ; Hibbert v. Martin, Park Ini. 6 adit. VoL 1, p. 29f , a.

128 BOUILLON v, LUPTON. T. V. 1863.

♦1291 ^^^* ®^® ^^^ °^* ^®^ ^^^^ quantity of ballast (only fifteen tons
J "instead of fifty), there being a bar at the mouth of the river
which the ship could not have crossed with that quantity on board.
Boats were in waiting outside, on the 1st of September, to ship the
remainder of the ballast, and the vessel crossed the bar on that day,
but struck in doing so, and the master, to ascertain what damage she
had received, put into an adjacent port without taking the rest of his
ballast, which was not done till the 4th, and the vessel proceeded upon
her voyage on the 8th. It was held that the ship's dropping down the
river and crossing the bar without her full ballast, was not a sailing ;
and that, until the ballast was completed, she was not ready for sea
within the rule referred to by the policy. " The general principle of
the decisions," said Lord Tenterden, '* is this, that if a ship quits hfe.
moorings and removes, though only to a short distance, being per/ecllf
ready to proceed upon her voyage, and is by some subsequent occurrencd
detained, that is nevertheless a sailing : but it is otherwise, if, at tho-
time when she quits her moorings and hoists her sails, she is not in a
condition for completing her sea voyage." And Littledale, J., said :
"to entitle the plaintiff* to recover, it should have appeared that the
ship broke ground on the 1st of September, ready to go to sea. She
required fifty tons of ballast to cross the Atlantic, and she had not
that quantity on board till the 4th of September. It is said that whe.u
she broke ground she had as much ballast as she could take withni
the bar; but that is no excuse; it was the plaintiff'^s business to put
himself in such a situation as to be sure of completing his ballast in
the proper time. Having left it to the last moment, he must be liable
for the consequence." So here, the plaintiffs should have taken care
that the vessels should be ready for sea by the day named in the war-
ranty. In Graham v. Barras, 5 B. & Ad. 1011 (E. C. L. R. vol. 28),
*1301 ** ^'^^P ^^^ insured from April 1st, 1831, to January 1st, 1832,
J warranted not to sail foreign after the times limited in certain
club rules. The rules or warranties of the club limited the times of
sailing to different parts of the world, and by a distinct warranty it
was declared that the time of clearing at the Custom House should be
deemed the time of sailing, provided the ship was then ready for sea.
The vessel insured was bound for the Bay of Fundy from Dublin, and
the last day for sailing, by the rules, was, the 1st of September. She
cleared out on the 31st of August, and dropped down the Liffby on
the 1st of September, with an incomplete crew (though a full com-
plement was engaged before the ship cleared out), to a place within
the port of Dublin, where she lay at anchor the rest of the day.
During that day, the whole crew came on board, and on the 2d she
proceeded on her voyage, having been prevented from doing so on the
1st by an unfavourable wind. She was afterwards lost : and in an
action upon the policy, it was held that the plaintiff was not entitled
to recover, for that the ship did not actually sail till afler the 1st of
September, and that she was not ready for sea at the time of clearing
out, the whole crew not being then on board. These oases, it is sub-
mitted, clearly show that these vessels were bound to be in a conditiou
on the 15th of August to begin the voyage, — the entire voyage, — u.»
Oalatz ; and the delay at Marseilles for the purpose of putting them
in that condition was wholly unjustifiable. Dixon i;. Sadler, 5 M. &

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 130

W. 414, is no authority for saying that a voyage may be split up into
distinct portions quoad the warranty to sail on or before a given day •
and all that is laid down in the judgment of Lord Wensleydale in
Biccard v. Shepherd, 14 Moore's P. 0. 471, is, that there may be one
degree of sea- worthiness for a voyage down a canal or river, and
another *and different one for a voyage to be performed upon r*i oi
the open sea. [Willes, J. — I do not see how you give any ^
application to the language of Lord Wensleydale in that case. Your
argument seems to be, that, although it is conceded that a. different
state of fitness or worthiness is required for the river navigation from
that which is required for the sea, no time is to be allowed for the
necessary change in the condition of the vessels.] The plaintiffs were
bound to have the vessels in a fit state and ready to proceed to sea by
the day named in the warranty. It is not pretended that this might
not have been done at Aries.

As to the vessel Papin No. 6, although she arrived at Marseilles on
the 29th of July, no attempt was made to get her ready for sea before
the 7th or 8th of August. The reason assigned for this, was, that it
was considered advisable, having regard to the safety of the captains
and crews, that the three vessels should sail in company. That,
however, was a delay for the purpose of avoiding a peril not insured
against : and there was no evidence to show, that, in case of danger
arising in the course of their passage from Marseilles to Galatz, these
vessels coiftd have assisted each other. The case, as regards this
point, is precisely within the principle of O'Reilly v. The Royal
Exchange Assurance, 4 Campb. 246, and O'Reilly v, Gonne, 4 Campb.
249. In the former it was held, that, where a policy of insurance
contains a warranty against seizure in port, if the ship, to avoid such
seizure, runs to sea before she is properly loaded, and is in conse-
quence obliged to go to a port out of the course of the voyage
insured, the underwriters are not liable for a subsequent loss ; and m
the latter, where the policy contained no warranty against seizure,
the underwriters were held liable. At all events, therefore, there
must be a verdict for the defendant, or a new trial, as to the Papin
No. 6.

•Willes, J.(a) — This case presents some features of novelty: r#i qo
and, if the court were of opinion that the novelty was in the '■
principle of law which it is necessary to affirm for the purpose of
disposing of the rule, we should certainly have taken time to consider
our judgment. But, as it appears to us, — upon full consideration, and
after having had the advantage of a most able and elaborate argu-
ment on both sides, — that the principle which must determine the
case is one which is clear as well as familiar, we have come to the
conclusion that it will be better to dispose of it at once, — though,
fleeing the large amount involved, it would have been more satisfactory
to our minds if the argument had taken place before a full court. The
parties, however, were anxious that the case should be heard at these
sittings: and, if either of them b*e dissatisfied with our decision, thej
will not be without remedy.

The novelty and peculiarity of the case, so far as the decisions are

(a) Williams, J., had left the oonrt for the purpose of proceeding to Chambers before Uu
dose of the argument

C. B. H. 8., VOL. XV,— 7

132 BOUILLON v, LUPTON. T,V. 1863.

coDCerned, consists in this, that, instead of the voyage insured being
from a port to another port across the ocean, it commences by a dis-
tinct navigation of some hundred miles down an inland river, where the
conditions and the system of navigation are wholly and entirely dis-
tinct from those which apply to the rest of tlie voyage of the vessels
to their port of destination. The facts proved at the trial show that
it was a necessity, regard being had to the course of business pursued
by persons using the navigation in question, and to that which must
be regarded in all mercantile transactions, viz. the cost of conveyance
and labour, and the like, that the vessels should upon starting from
Lyons be in a state of preparation for the voyage down the river to
*l*iRl ^^''^''s^^l^^s only, but not *in a state of preparation fit for the

J voyage from Marseilles to Galatz. It would be useless to go
through all the evidence upon this point: it is enough to select one
striking fact which warrants that conclusion, viz, that the vessels,
because of bridges, could not go down the river with their masts
stepped ; their sails would be unavailing ; and they could only use
steam-power: and, further, they would require an amount and a class
of pilotage which would become unnecessary and useless when tiiey
reached the sea. Therefore, I repeat, the vessels must necessarily
Jeave the place where their river navigation commenced, and must
•complete that river navigation in a state in which they would be
wholly unsafe and unfit for the sea voyage. The river navigation
was an entirely distinct portion of the voyage from Lyoi#s to Galatz.
Starting from Lyons, the vessels were not bound to be, and could not
be, sea-worthy for more than the river navigation. It appears to rae
that oo further statement of the facts is necessary for the purpose of
dissevering the portion of the voyage between Lyons and Marseilles
from that from Marseilles to Galatz, than the statement which I have
already made.

What, then, is the conclusion to be drawn, with reference, first, to
the warranty of sea -worthiness, and, secondly, to the warranty con-
taiaed in this policy, to sail on or before the 15th of August? It
^ippears to me to be impossible to read these warranties in the sense
•of saying that the vessels were to depart from Lyons in a complete
'State, fit to proceed upon their voyage to Galatz. The facts, — which
must have been as well known to the insurers as to the assured, —
-show that that construction would make the warranty defeat the
policy altogether. The vessels could not be sent from Lyons in a
complete state of sea- worthiness for the voyage from that place to
*1341 ^^^^^^- -^^» therefore, *the necessity of the case compels us

^ to reject that construction, it appears to me that we must take
each of these warranties separately, and see how far each of them has
been complied with. And first I will take the warranty of sea- worthi-
ness. For the reasons which I have already given, the warranty of
sea-worthiness must have a difierent meaning as applied to the two
different portions of the voyage. Whilst descending the Rhone, the
vessels must be "sea-worthy, —that is to say, in a state of fitness, —
for the river navigation ; and, whilst on their voyage from Marseille*
to Galatz, they must be fit for the sea portion of the voyage. Bat
then another difficulty is suggested, viz. that there was an intermedin
4ite voyage from Aries to Marseilles. With respect to the voyage

COMMON BENCH REPORTS. (15 J. SCOTT. IT. S.) 134

from the mouth of the Rhone to Marseilles, that appears to me to iredt
simply on geography. In one sense, no doubt, the vessels would get
into the Mediterranean as soon as they left the mouth of the Rhone :
but they did not then commence their sea navigation in the sense of
a navigation for which a different preparation and a different sort of
sea- worthiness was required : and it is with that we are now con-
cerned. Then, can any distinction be drawn with respect to the
voyage from Aries to Marseilles ? Clearly not, unless Aries was the
proper place, — assuming that there was any allowable place, — for the
vessels to delay in order to change their state of preparation from a
state proper for riv^r navigation -to a state proper for sea navigation.
Now, for this we must resort to the evidence. It certainly was possi-
ble to procure at Aries the spars^ sails, anchors, cables, and other
appliances which were necessary to put the vessels in a fit state of pre-
paration for the sea portion of the voyage. But^ was it necessary or
reasonable that the assured should incur the expense of having these
things brought to Aries, when the vessels •could in their then r*jq-
state of preparation safely proceed to Marseilles and have them ^
more conveniently and at less expense supplied there? and was there
any delay which could prejudice the insurers? On the contrary, the
delay which would have been caused by bringing to Aries the things
necessary for a sea equipment would have extended^ to months;
whereas, the whole was completed at Marseilles in a few days. But,
further, supposing the vessels could have been and had been com-
pletely equipped for the sea voyage at Aries, it was still necessary
that they should proceed to Marseilles for the purpose of obtaining the
surveys and certificates which are essential to a due compliance with
the laws of 1791 and 1807. The vessels had a right under the policy
to touch and stay for all lawful purposes at any port or place on their
way ; and unquestionably Marseilles was a lawful port to stay at fbr
that necessary purpose, regard being had to the nature of the voyage
and the country to which the vessels belonged. It appears to me,
therefore, that, as the vessels were seaworthv from Aries to Mar-
seilles, the objection that they were not completely fitted at Aries U
one which resolves itself into a mere question of delay ; and the evi-
dence plainly shows that the assured would have been guilty of culpa-
ble delay if thev had detained the vessels at Aries instead of at ofice
proceeding to Marseilles.

The warranty of sea-worthiness, then^ so far as regards the voyage
from Lyons to Marseilles, having beeh Ootnplied With, has it been
com pi i^ with as regards the remaining portion of the voyage, vie.
from Marseilles to Galatz ? As to the delay at Marseilles, it appears
to me, that, if the underwriter could have showti that there was any
residuum of repair completed at Marseilles which might have been
completed at Lyods, and which caused any delay at Marseiilles, he
would have succeeded on the secotid *poibt. If it could have r^.] da
been shown that the repair to the rudder, for iastanitd, tiras one I*
which might have been oorapleted at Lyons, and that the doing it at
Marseilles caused a greater ddlaj there thaa would bate been Occa-
sioned by doin^ those repairs only which it Was &M668arv should b6
done at Marseilles, I should )Mve MA ifa4t the delay defeated the
policieft Bat it appears to me that the iMti#Of haa mled upon the

136 BOUILLON i;. LUPTON. T. V. 1863.

second proposition, even although ho might have been successful on
the first. With regard to the first, it is necessary to consider whether
the repairs which were done to the rudder were repairs incidental to
changing it from that description of rudder which is used for the river
navigation to that which is adapted for a sea voyage, or whether they
were such as were rendered necessary by some injury sustained in the
course of the passage down the river, and which would fall within the
ordinary class of "average." Now, there is no evidence that
the rudder sustained any damage in coming down the river, or that
the repair or alteration of the rudder caused any delay. Whilst the
masts were being placed, by whatever number of men or mechanical
appliances, it may well be that the rudder was at the same time under-
going the requisite alteration or repair by some trifling application of
labour. If it can be supposed that every portion of repair which is
done to a vessel must necessarily be .done in some other portion of
time consecutively from every other repair, and that the whole cannot
proceed simultaneously, the argument will advance some way. But,
even if that could be established, I should have thought that in the
form in which this matter is presented to the court it was not compe-
tent to the defendants to raise such a question. I should have thought,
that, if that was intended to be relied on by the defendant, it ought
*1*571 ^ ^^y^ been distinctly pointed *out at the trial, and the opinion
J of the'jury taken upon it. For the reasons which I have given,
although proper to be mentioned to the court, it is, I think, a point
which, when properly sifted, does not bear the importance which,
under the influence of Sir George Honyman's argument, it at ono
time assumed.

Having, as I conceive, disposed of the warranty of sea- worthiness,
assuming that there may be a case in insurance law in which the sea-
worthiness need not exist with reference to the entire voyage at the
time the vessel weighs anchor and breaks ground, — the next question
is, whether there is in our law of insurance such a case as that of a
warranty of sea-worthiness applicable in different degrees to two
several parts of the voyage insured, arising either from the necessity
of the case or from the usage of navigation ; because it appears to me
that either would warrant the assured in their contention in this case.
Now, with respect to the necessity of the case, I have already
explained that, in the view I take, such necessity did exist. And,
with regard to the usage of navigation, the evidence seems to me to
show, that, if the assured had done other than what they did, they
would have pursued an unusual course : and the policies give express
power to st^y for all lawful purposes at Marseilles.

Now, to show that there is such a case, it appears to me only to be
necessary to refer to the authority of Lord Wensleydale in Biccard v.
Shepherd, 14 Moore's P. C. 471. I do not propose to go through the
facts of that case, for in truth there is no similarity between them and
the facts of the present case: but I refer to the judgment of Lord
Wensleydale in order to show that there may be an insurance with a
fluctuating warranty of sea-worthiness. The case is one of the highest
authority, seeing that it is the unanimous judgment of the judicial
*1881 ^^™™^^*®® ^^ ^^ Privy Council. They *felt that there was
^ considerable difficulty in separating a voyage between interme-

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 138

diate porta from the voyage from the port of departure to the port of
ulterior destination : but, after much consideration, they held that the
sea voyage was to be divided into several periods, and that the war-
ranty of sea- worthiness had reference to the condition of the vessel at
those several periods. Lord Wensleydale, of whose great authority
it is unnecessary to say anything, thus lays down the law: — "Some
propositions in the doctrine of implied warranty of sea-worthiness,
which form a part of every contract of marine insurance on voyages
(for, to time policies it does not apply), are perfectly settled. They
are laid down in the case of Dixon v, Sadler, 5 M. & W.514, in which
I gave the judgment of the Court of Exchequer, with the concurrence
of my Brethren, founded on the principle laid down in several cases,
—Busk V. The Royal Exchange Assurance Company, 2 B. & Aid. 72,
Walker v. Maitland, 5 B. & Aid. 171 (E. C. L. S. vol. 7), Holdsworth
V. Wise, 7 B. & C. 794 (E. C. L. R. vol. 14), 1 M. & R. 673, Bishop v.
Pentland, 7 B. & C. 219, 1 M. & R. 49, and Shore v. Bentall. 7 B. &
C. 798, n. ' There is an implied warranty in every insurance of a
ship, that a vessel shall be sea-worthy, by which it is meant that she
shall be in a fit state as to repairs, equipment and crew, and in all
other respects, to perform the voyage insured, and to encounter the
ordinary perils, at the time of sailing upon it.' " That is the general
rule. If it be applicable here, of course there can be no doubt that
the defendants are right, and they ought to succeed, because the war-
ranty of sea- worthiness has not been complied with at Lyons in
respect of the whole voyage. Lord Wensleydale continues : " If the
insurance attaches before the voyage commences, it is enough that the
state of the ship be commensurate to the then risk ; and, if the voyage
be such as to require a different complement *of men or state of r*i on
equipment in diflerent parts of it, as, if it was a voyage down *•
a canal or river, and thence to and on the open sea, it is enough if the
vessel be, at each sta^e of the navigation in which the loss happens,
properly manned and equipped for it. But the assured makes no
warranty to the underwriters that the vessel shall continue sea- worthy."
Therefore my Lord Wensleydale, evidently contemplating a case of
this description, lays it down authoritatively that it is sufficient if the
warranty is complied vith by the ship being sea-worthy at and for
each stage of the navigation.

Now, is it possible, dealing with the law of insurance, if reason and
good sense are to have any weight, to say that the warranty of sea-
worthiness is complied with if the vessel is in a sufficient state of
preparation for each portion of the voyage, and yet that no time shall
be allowed for making the necessary change in her state ? It is only
necessary to state the proposition in order to elicit the true answer
from every person having any acquaintance with insurance law. If a
change may take place, the owner is entitled to a reasonable time in
which to effect that change. It appears to me, therefore, that the war-
ranty of sea-worthiness was complied with here in respect of place,
according to the principle above laid down, and which principle I am
content to act upon.

We come next to the question of time. In disposing of the ques-
tion as to the warranty of sea- worthiness, I have necessarily considered
and disposed of the question of time so far as relates to deviation and

139 BOUILLON v. LUPTON. T. V. 1863.

delay (other than deviation aud delay imputed to the vessel called
Papin No. 6) in respect of the repairs and alterations effected at Mar-
seilles for the purpose of fitting the vessels for sea-navigation. But
I have not disposed of the question whether or not the vessels did
*1401 *^^^^ ^^ ^^ before the loth of August. That is a question
■ J which requires a great deal of attention, because, with reference
to the ordinary case of a vessel bound on a voyage from port to port,
the law is settled, that a ship is not to be taken to have sailed unless
she is completely equipped for the voyage upon which she is starting,
and her equipment is not complete until she leaves her port of depart-
ure, everything having been done which is usually done to make her
fit to proceed on her voyage. That is the ordinary rule ; and it has
been laid down in a gre^it variety of cases to which reference has been
made in the course of the argument, — more especially in the case of
Ridsdale v. Newnham, 4 Campb. Ill, 8 M. & Selw. 456, before Lord
EUenborough, where the insurance was from Portneuf to London,
with a warranty to sail on or before the 28th of October, and the ves-
sel left Portneuf before the day in question sufiiciently equipped for
her voyage of thirty-six miles down the smooth waters of the St. Law-
rence to Quebec, where only she could obtain her clearances for the
voyage, but with an incomplete crew for her voyage to London. So
with respect to the case of Pettigrew v. Pringle, 3 B. & Ad. 514 (E.
C. L. R. vol. 23), where the vessel had to get over the bar at the mouth
of the river Ballyshannon, and take on board the thirty-five tons of
ballast which was necessary for the purpose of making her ready for
a sea voyage, and she did not t^ke in that until after the time appointed
for her sailing. It is sufiicient to refer to these cases as being speci-
mens of authorities in which it has been laid down as clear law, that
a vessel is not to be considered as having sailed from her port of
departure until she is ready to proceed upon the voyage insured.
Upon that I conceive there is no doubt at all. On the other hand, 1
*1411 ^^°^®^^® ^^ ^^ ^ equally clear that the utmost *extent to which
J those cases go, is that which is stated in that very ably and
carefully compiled work, Phillips on Insurance, in which the learned
author treats these cases as showing that a vessel cannot be said to
*' sail" from a port without having completed her equipment either
there or at another place which is to be considered as forming part of
the same port, — or, as he has it, *' appended to the port for the pur-
pose of preparing the vessel for her voyage." But in none of those
cases was there the necessity which exists here, of construing the
warranty of seaworthiness with reference to each distinct part of the
voyage : And here it was impossible that the vessel should leave the
first port, the terminus k quo, in a state of preparation for any more
than the stage of the voyage upon which she was to proceed imme-
diately after leaving that port. And I must observe, that, in all those
cases, the vessel was not seaworthy, that is to say, seaworthy in the
sense of being completely equipped for the voyage, when she left the
place at which it was held that the voyage did not commence. In the
present case, however, having regard to the peculiar construction and
application which it is necessary to give to the warranty of seawor-
thiness, the vessels had left Lyons before the 15th of August in such
a state of preparation as it was necessary for them to be in, and in the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 141

only state of preparation which they could reasonably be in, for tho
stage of the voyage succeeding their departure from Lyons. The
same reasons which warranted the judgment of Lord Wensleydale in
the case of Biccard v. Shepherd, 14 Moore's P. C. 471, as it appears
to me, warrant the conclusion, that, where a vessel undei' circum-
stances of this description sails from the port named in a state of fit-
ness for the first part of her voyage, — that being, as I have already
pointed out, distinct from the *other portion of the voyage, — r*i4o
she does sail in time if she leaves that port so equipped before ^
the day named in the warranty. It appears to me that we should be
acting inconsistently if we applied the authority of Lord Wensleydale
to the warranty of sea-worthiness, and refusal to be guided by it
where it is strictly applicable in principle, as, to the warranty to sail
on or before a given day.

It only remains for me to dispose of the point which was raised
with respect to the vessel Papin No. 6. The facts as to that vessel,
no doubt, raise a question altogether different from that which we
have hitherto been considering, because it appears that she left Lyons
on the 24th of July and arrived at Marseilles on the 29th. It follows
from wliat I have already said, that, in my opinion, it was not neces-
sary to put that vessel in hand so as to complete her equipment and
make her ready to sail from Marseilles on or before the 15th of
August. But it was necessary to use due and reasonable diligence in
making her ready to start from the last- mentioned port. Now, the
amount of diligence exercised with reference to the Papin No. 6
appears to have had reference to the two other vessels, the Bourdon,
which left Lyons on the 2d of August and arrived at Marseilles on
the 7th, and the Papin No. 1, which left Lyons on the same day and
reached Marseilles oil the 8th. These two latter vessels appear to
have been repaired with all the diligence which could have been ap-
plied to them. All three were ready on the 20th, and actually sailed
from Marseilles on the 23d. Now, there is no doubt, upon the evi-
dence, that the Papin No. 6 might have been got ready before the 20th
of August, and that the repairs of that vessel, — or rather the " outfit,*'
for "repairs,*' which was the word used in the argument, is an incor-
rect one, — the outfit of that vessel *was not proceeded with with rm\AQ
the same rapidity as that of the other two vessels, which arrived *-
at Marseilles some days later. The explanation which was given of
that delay, was, that, considering the build of the vessels, and the
nature of the voyage on which they were bound, it was considered to
be advisable that they should sail in company; and there is no doubt
that the owners di(J, with that object in view, keep back the outfit of
the Papin No. 6 for a few days. The question is, whether there is
any evidence to show that that delay was a reasonable delay. If I
had pressed the argument upon which I held that there was a right to
do the repairs at Marseilles, having regard to the peculiar character
and application of the warranty of sea- worthiness in this particular
case, I must have held that the assured bad a reasonable time in which
to do those repairs ; and what is a reasonable time would properly of
couroe have reference to the time necessary to do what was required
to be done. But that, I conceive, is not the only matter to which
reference is to be made in order to determine the question of reason-

143 BOUILLON v. LUPTON. T. V. 18«3.

ableness of time. There may be circumstances affecting the safety of
the vessel, or the convenient prosecution of the voyage, which may
justify some delay. But that must be a question for the jury, having
regard to all the facts laid before them. We have the evidence of a
captain in the French navy, — the skill and courage of whose ofBcers
we have had too many opportunities of appreciating, — who stated he
thought it but reasonable that the Papin No. 6 should wait until the
other two vessels were ready. He gave as his reason, that he would
not like to sail in one of these vessels without having the others in
company ; intimating that they were somewhat crank, and such as to
the mind of a sea-going man of experience suggested such an amount
. •1441 of peril as he would not be willing to *encounter without
-' having assistance at hand. If that was the opinion of a man
of such a character as used to be called in the old books a man of a
constant mind, — not of mere caprice or timidity, but having a due
regard to the safety of the vessel and the lives of her crew, — I cannot
say that there was no evidence upon which a jury might properly
hold that a prudent man uninsured would have waited the time that
the captain of the Papin No. 6 did wait. I cannot, when I come
thoroughly to consider the matter, bring myself to say that there was
no evidence from which the jury might fairly come to the conclusion
that there was no unreasonable delay. It is not desirable to withdraw
questions of that sort from a jury, who, from their habits and general
knowledge of business, are well qualified to deal with them.

Upon that point, therefore, as upon the others, I feel bound to come
to a conclusion in favour of the plaintififs, and to hold that the rule
should be discharged.

Byles, J. — I am entirely of the same opinion. My Brother Willes
has gone so fully into the various points which were raised in this
case, that it is unnecessary for me to say more than that I entirely
concur in every part of his judgment. There is, however, one obser-
vation which may be made as to Papin No. 6. In addition to the
consideration for the lives of the crew, which is an element which, I
think, might fairly guide the judgment of the captain, I think it is
plain upon the face of the policies that it was the intention of the
parties that these three vessels should sail in company. I think the
stipulation that the assured should have leave "to tow and be towed," —
bearing in mind that they are all steam- vessels, — necessarily imports
*1451 *^^^ ^^®^ ^^® *^ proceed in company; at all events, if *no ex
^ traordinary or unreasonable delay is to be occasioned therehy.
Again repeating my adhesion to all that has fallen from my Brother
AVilles, I must say that I do not entertain any doubt as to the pro-
priety of our decision. Eule discharged .(a]

^ (a) See Bargei v. Wiekham, S2 Law J. Q. B. 17.

COMMON BENCH REPORTS. (16 J. SCOTT. N. S.) 145

COLLINGWOOD v. BERKELEY and Others. June 6.

A prospectus of a projected company for tbe eonrejanoe of emigrants to British Colnmbia
contained statements calcnlated to induce intending emigrants to belioTe that arrangements
bad been perfected for the object in view, and inriting them to take tickets for their passagt
and the public to purchase shares. This prospectus was shown by the secretary to the defend-
ants, and they were asked to allow their names to be inserted therein as directors ; to which
they consented, on bring qnalijied (that is, presented each with 200 psid-np shares of the nomi-
nal value of 10/. each) and indemnified. Their names were accordingly inserted, and the pros-
pectus published and advertised in the Times : —

Held, that, from these facts, the jury were warranted in inferring that one who contracted
with tbe secretary for a passage, and paid his money, upon the faith of the representations con-
tained in the prospectus, did so upon the credit of the defendants, and consequently that he
was entitled to sue them for a breach of such contract.

This was an action for the breach of an alleged contract by the
defendants to carry the plaintiff from London to British Columbia.

The first count of the declaration stated that the defendants were
directors of a certain company called The British Columbia Overland
Transit Company, and that they falsely and fraudulently represented
to the plaintiff that the said company would, in the month of May,
1862, despatch a party of passengers from England per steamer to
Canada and over the Grand Trunk railway to Chicago and St. Paul's,
and via the Red River Settlement, in covered wagons, four-horsed, to
British Columbia; also that a large escort would accompany the
passengers, and due provision would be made for victualling, and that
the fare or pasSage-money for each passenger from England to British
Columbia aforesaid would be the sum of 42 Z., and that *one r^i^g
James Henson was secretary of the said company : Averment, ^
that, believing the said representations to be true, and relying thereon,
the plaintiff was induced to pay to the said James Henson, as such
secretary of the said company, and the said James Henson, as such
secretary, accepted and received from the plaintiff, the sum of 42 Z. as
and for the fare or passage-money for the conveyance of the plaintiff
from England to British Columbia by the means and in the manner
hereinbefore set forth; and that all conditions were performed and
fulfilled, and all things happened and were done, and all times had
elapsed necessary to entitle the plaintiff' to be conveyed to British
Columbia aforesaid by the said company, and to maintain this action :
Breach, that the defendants did not convey the plaintiff to British
Columbia or to any other place beyond St. Paul's aforesaid, and no
covered or other carriages, four-horsed or otherwise, were provided by
the defendants for the conveyance of the plaintiff to British Columbia
aforesaid, nor was there any escort provided to accompany the plain-
tiff as such passenger as aforesaid, nor was any provision made for
victualling the plaintiff as such passenger as aforesaid, as the defend-
ants well knew.

The second count stated that the defendants and divers other persons
issued, published, and circulated, and caused to be issued, published,
and circulated certain prospectuses or advertisements, in which it was,
amongst other things, stated and represented that the defendants and
divers other persons were directors of a certain company called The
British Columbia Overland Transit Company, Limited, and that one
James Henson was the secretary of the said company, and that the

146 COLLINGWOOD r. BERKELEY. T. V. 1863.

promoters of the said company had organized a certain route from
Canada to British Columbia, and would forthwith organize a perfect
♦1471 I^o^"^^^"sport train *of horses and spring-carts adapted for
J passengers and goods traffic, and that instructions had been sent
out to its agents, by which the route would be placed in a perfect
state, and would in the month of May, 1862, despatch a party of first
and second-class passengers by the said route from England to British
* Columbia : Averment, that, believing the statements and representa-
tions in the said prospectuses or advertisements, and relying thereon,
the plaintiff was induced to enter into a certain contract or agreement
with the said James Henson as the secretary and on behalf of the
said alleged company, for the conveyance by the said alleged company
of the plaintiff to British Columbia by the route aforesaid, and to pay
to the said James Henson as such secretary the sum of 42Z. as and for
the passage-money or fare of the plaintiff: Breach, that the defendants,
in and by the said statements and representations thereinbefore men-
tioned, deceived and defrauded the plaintiff in this, that, at the time
of making the said statements and representations, no company had
been established called The British Columbia Overland Transit Com-
pany, Limited, and no route had been organized from Canada to
British Columbia by the alleged promoters of the said alleged company,
and no means had been taken or were intended to be taken to organ-
ize a land-transport train of horses and spring-carts, and instructions
had not been sent out to the agents of the said alleged company, by
which the said alleged route would be placed in a perfect state, — all
which the defendants well knew ; and that the plaintiff was not con-
veyed to British Columbia aforesaid in pursuance of the said contract
or agreement with the said James Henson as such secretary as afore-
said, but only to St. Paul's aforesaid.

•1481 ^^® *^'^^ count stated, that, on the 17th of May, ♦1862, in
^ consideration of the sum of 42Z. then paid to the defendants
by the plaintiff, the defendants agreed with the plaintiff to carry and
convey the plaintiff* from England to British Columbia, by way of
St. PauFs, and that from St. Paul's aforesaid to British Columbia
aforesaid a large train of horses and wagons, accompanied by a nume-
rous escort, should and would start with the convoy ; also that parties
should and would be sent in advance to collect at stated points extra
provisions; while cattle would be driven to those stations; and that
all conditions were performed and fulfilled, and all things happened
and were done, and all times elapsed necessary to entitle the plaintiff
to a performance of the said agreement by the defendants and to
maintain this action for the breach thereof hereinafter alleged : Breach,
that the defendants did not carry and convey the plaintiff from
England to British Columbia aforesaid by way of St. Paul's aforesaid
or otherwise, and no train of horses and wagons accompanied by a
numerous or any escort were provided by the defendants or any
other person or persons to start from St. Paul's aforesaid to British
Columbia aforesaid, and the defendants did not send any person or
persons from St. Paul's in advance, for the purposes above stated or
any of them ; whereby and by means whereof the plaintiff was com-
pelled to remain and stay at St. Paul's aforesaid for a long time, to
wit, seven days, and was unable to proceed to British Columbia afore-

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 148

said, and lost divers large profits and gains that he otherwise would
have made at British Columbia aforesaid, and was compelled to leave
St. PanPs aforesaid, and was put to expense, to wit, the sum of 100^.,
Id returning to England.

There was also a count for money paid, money received, and money
fouud dae upon accounts stated.

The defendants severally pleaded in substance as *follows, — r*i 49
first, to the first and second counts, not guilty, — secondly, to *-
the first count, that they were not directors as alleged, — thirdly, to
the third count, that they did not agree as alleged, — fourthly, to the
third count, that the plaintiff did not pay the said sum, or any part
thereof, to them as alleged, — fifthly, to the residue of the declaration,
never indebted. Issue thereon.

The cause was tried before Erie, 0. J., at the sittings in London
after last Hilary Term. The facts which Appeared in evidence were
in substance as follows : —

In the Spring of 1862, a gentleman who called himself Colonel
Sleigh proposed to form a company, with limited liability, for the
conveyance of emigrants to British Columbia, appointed a secretary,
took offices in the city, and issued a prospectus to the following
effect, —

"British Columbia Overland Transit Company,'Limited (with an-
ticipated legislative, colonial, and government postal subsidies or
guaranties of 6 per cent.). To be incorporated under the provisions
of the Joint-Stock Companies Acts of 1857 and 1858. Capital,
500,000?. sterling (with power to increase to one million), in 50,000
shares of 10/. each. Deposit, 11. per share on application, and 11, 10s.
on allotment. No further call without three months' notice, except
by consent of a general meeting of the shareholders.

"Board of Directors,— The Hon. F. H. Fitzhardinge Berkeley, M.
P., Henry Fenton Jadis, Ac, &c.

"Bankers, — Bank of London, Threadneedle Street, E. C; Robarts,
Lubbock, & Co., 11 Mansion House Street, E. C.

"Solicitors, — Messrs. Prichard & Collette, 57, Lincoln's Inn Fields.

" Offices,— 6, Copthall Court, Throgmorton Street.

" Secretary, — James Henson, Esq.

**' The only drawback to the future greatness of the country, r^^ ca
is, the distance by sea from Europe, — five months vi& Cape *•
Horn, and forty to fifty days by steam vifi Panama. To obviate this
and at once give an impetus to immigration, and by which a contin-
uous stream of settlers will hasten to British Columbia, the overland
route from Canada, passing direct through British territory, has been
arranged by the promoters of the Overland Transit Company. Sev-
eral surveys have resulted in tracing a direct road, which, with a
perfect organization of land transport, is at once available. From
Europe, settlers will proceed to Canada, and thence direct by steam to
Fort William, or, as afterwards explained, to Fond du Lac, Lake Su-
perior. From thence the route proceeds to the Red River Settlement,
and onwards direct through a lovely prairie country to British Colum-
bia by the route indicated in the following extract from the report of
Governor Douglas, printed in the Blue Books of 1860, and laid before
parliament^ — 'From Lytton, a central point in British Columbia, a

150 COLLINGWOOD v, BERKELEY. T. V. 1863.

natural road now exists, leading to Eed River Settlement, by the Con-
tannais Pass, through the Rocky Mountains, and from thence follow-
ing the Valley of the Saskatchewan, chiefly over a prairie country of
great beauty, replete with game. A settler may take his departure
with his cattle and stock, and reach British Columbia by that road.
This is no theory ; the experiment having been repeatedly made by
parties of Red River people travelling to Colville, British Columbia,
from whence there is a good road to Lytton ; so much so, indeed, that
persons assured me that the whole distance from Lytton to Red River
may be safely travelled with carts. Lytton is a town situated in the
centre of the gold district of British Columbia, near Fort Hope on
the Frazer River.'
^^^|, *"This corporation will forthwith organize a perfect land-

-' transport train of horses and spring-carts adapted for passen-
gers and goods traffic, and erect log-shanties for light stabling and
refreshment at stated intervals along the entire route. Cattle and
provisions will be collected at these stations, and armed mounted
escorts will be formed for convoy. By the arrangements already in
a state of forwardness in Canada from instructions sent out to agents,
there can be no question but that the route will be placed in a perfect
state, ready to meet the requirements of an enormous immigrant traffic
Applications have been made direct to the legislative council of Bri-
tish Columbia, and to the government in Canada, for local charters
which shall secure for this company exclusive privileges for several
years to come. Both Canada and British Columbia have offered large
inducements to the promoters of an overland route such has been or-
ganized by this company. It is estimated that by the express carts of
this corporation, the distance from Lytton or Fort Hope on the Fra-
zer River, British Columbia, to Lake Superior, the head quarters of
steam navigation, will be performed in twelve days. Hence, Europe
could be reached from British Columbia in, say, twenty-five days. As
the route from Fort William, Lake Superior, to Red River Settlement,
would require some delay to be put in a state for cart traffic, the Over-
land Transit Companv propose for the first twelve months that pas-
sengers should proceed by steamer to Fond du Lac, Lake Superior,
and thence up the St. Louis river, and thence by express carts to the
junction of the Sioux Wood and Red River (two hundred miles),
from thence in small river steamers to Assiniboine, Red River Settle-
ment (one hundred and eighty miles). Small steamers, especially
adapted for this navigation, can be constructed for 5000^. a piece.
♦1521 ^^^^ *Assiniboine to Elbow Forks of the S. Saskatchewan(a)

•^ (five hundred miles), from Elbow to Fort Hope, on the Frazer
River, British Columbia, vifi the Vermillion Pass of the Rocky Moun-
tains (seven hundred miles). Hope Town is connected by steamers
with Victoria. Total distance from Fond du Lac, fifteen hundred and
eighty miles, about two hundred miles of which will be travelled in
steamers ; and probably more steamers will ultimately be put upon
the S. Saskatchewan, by which three hundred miles more could be
travelled in steamers; thus reducing land travel by five hundred
miles, being about one thousand miles for the express carts. While

(a) Sir Qeorge Simpson, the goTernor of the Hndson's Baj Compaay, travelled between Rel
filTer and the 6. Saakatobewan on a well-defined track over the plains with a oart.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 152

the United States overland route from St. Louig to San Francisco is
two thousand seven hundred and sixty-five miles, the British Transit
Company's route is only fifteen hundred and eighty miles, showing a
saving of distance in favour of the latter of above one thousand miles,
and a saving of ten days in time. i

" To obviate the necessity of the slightest delay in opening up the
first portion of the route to the Eed River Settlement, reciprocal
arrangements are in course of completion, by which this company can
without any delay forward its passengers to Detroit, and from thence
to Chicago, by railroad, and thence per rail to La Crosse, on the Mis-
sissippi. There are two trains daily between Chicago and La Crosse
(time thirteen hours), and from thence there are two lines of steamers
to St. Paul's (time from Portland or Quebec to St. Paul's, three days).
Sail and steam distance, 1358 miles ; and in winter stage-coaches from
La Crosse to St. Paul's. From St. Paul's there is an excellent r#i -o
*and well-travelled road, connecting with the Red River Settle- •■
ments, y\& Pembina, to Assiniboine.

* Estimating the receipts from first-class passengers by the postal
express, and from second-class passengers and emigrant escort-trains,
the revenue would amount to above 800,000Z. per annum, adding the
revenue from return passengers, parcels, gold, goods, and emigrant
escorts, and calculating also the freightage on gold-dust which would
be transported by this route to Europe, deducting working expenses,
estimated upon the basis of the United States overland transport
express from Missouri to San Francisco, there would be a profit of fully
100,000?. per annum, irrespective of postal revenue or colonial subsi-
dies. Escort-trains for emigrants will be organized on a less expensive
scale of charge, and by which British Coluinbia be will reached in about
a month, at a cost of about lOZ. from Canada, or less, per adult head.

*' This great national undertaking cannot fail to be appreciated by
a British public, standing second to none in commercial enterprise and
patriotic devotedness to the future greatness of the British empire.

"It is a question of great importance, whether by this route
Australia and China cannot be reached a month sooner by saving of
time than by the existing routes. Such is the opinion of some first-
class authorities."

After referring to " the banking business of the corporation," the

;rospectus concluded as follows: — "The British Columbia Overland
Vansit Company, Limited, is enabled to start with the full advantages
of the act by which the liability of the shareholders is strictly limited
in each case to the amount of their shares :" and it was signed, "James
Heoson, Secretary."

This prospectus was shown to Mr. Berkeley (who was one of the
members for Bristol), and Mr. Jadis (who held an appointment in the
oflBce of the board of *trade), by Henson, and they authorized r4.i 54
its publication with their names in it : and on the 1st of April *-
Mr. Berkeley, in a letter addressed to Henson, wrote, — " On the distinct
understanding that I am indemnified and (qualified" (that is, by having
200 shares, nominally paid up, appropriated to him), "I have no
objection to belong to the British Columbia Overland Transit Company
and Banking (Corporation, Limited."

In the Times of the 28d and 26th of May, 1862, two letters appeared.

154 COLLINGWOOD v. BERKELEY. T. V. 1863.

complaining of the hardships which passengers who had been induced
to travel by the company's route had had to encounter, and comment-
ing in strong terms upon the conduct of the promoters, the chief of
whom (and probably the only one) had then been discovered to be
Colonel Sleigh. The matter also underwent considerable discussion
in the House of Commons* This produced from Mr. Berkeley the
following letters, addressed to Henson, —

May 26, 1862. '*In the House I consulted Mr. Chichester Fortescue,
and he considered that it were best that I should merely watch pro-
ceedings, and come in if the thing looked serious. It did not. At
the same time, I should like to know what reasonable probability there
is of overcoming the difficulties related in the Times of to-day. It
will not do to let our emigrants eat horses and dead dogs. Colonel S.
is not viewed with much confidence by government nor by the public,
I assure you."

May 30, 1862. '* Please to withdraw my name from the British
Columbia Emigration Company at once. I am not at all satisfied with
the arrangements, and decline to belong to it."

May 30, 1862. "Representing a great mercantile constituency, I
doubt whether my name appearing in so many companies is prudent.
As regards the Columbia, I have already written to withdraw my
^1^ -.--. name. *I do not desire to injure the prospectsof thecompany :
J but, after the present time, my name must not appear. I hear
the most unpleasant reports; and Colonel Sleigh's name is not a tower
of strength sufficient to stem public opi&ion.

'^ P. S. Please take no steps in any companies for me until we
meet."

Upon the faith of the statements contained in the prospectus, the
plaintiff (with many others) on the 17th of May, 1862, agreed with
Benson, the secretary, for a passage to British Columbia, for which* he
paid Henson 42Z. ; but, when the train arrived at St. Paul's, it was
found that no further progress could be made, no arrangements having
been made for carrying the passengers on to their destination ; and,
after enduring many hardships and privations, some of them,-^the
plaintiff' amongst the rest, — found their way back to England in a state
of almost utter destitution.

Henson, who was called as a witness, stated that he showed the
prospectus to Mr. Berkeley, Mr« Jadis, and the others, and asked them
if they would consent to become directors of the proposed company,
and that they all assented to do so ; and thereupon he inserted their
names, and the prospectus was pablished and advertised in the Times
for several weeks. He further stated that all the money which he
received from pasdengerd atid for deposits (about 1500/. in the whole)
was paid in to the account of Colonel Sleigh at the West End Bank.

There was no evidence that either Mr^ Berkeley or Mr. Jadis had
ever been to the offices of the company, or had seen the advertise*
ments, or taken any active part in the promotion of the concern ; and
both swore that they never intended to authoriee Henson to enter into
any contracts upon their credit until the company was fairly formed
*15fi1 ^^^ ^^' arrangements for *the tf atisit of passengers perfected^
^ The only evidence to fix Jadls, was, that he bad written to
Henson^ assenting to bd nam^ a difeotor "on being qualified and

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 156

indemDified/' and that, in a letter addressed to a third party, he stated
that he was a director of the company.

On the part of the plaintiff it was submitted that the defendants, by
consenting to become directors, had authorized Henson to make con-
tracts for the furtherance of the scheme, and that for the breach of
those contracts they were liable, if not for the false and fraudulent
representations contained in the prospectus. For the defendants, on
the other hand, it was contended that they had never authorized
Ilenson to enter into any contracts in their names, and that all they
contemplated, was, to become directors of a company to be commenced
when all the arrangements referred to in the prospectus had been fully
carried out.

The jury returned a verdict for the plaintiff, damages 160?.

Montague Smith, Q. C, in Easter Term last, pursuant to leave
reserved to him at the trial, obtained a rule nisi to enter a verdict for
the defendant Berkeley ** on the ground that he had given no authority
to any one to enter into the contract, and that there was no evidence
of such authority;" or for a new trial on the ground that the verdict
was against evidence.

Dalt/ at the same time obtained a similar rule on behalf of the
defendant Jadis.

Shee, Serjt., and Pigott^ Serjt., showed cause. — There was abundant
evidence to show that during the months of April and May, 1862,
both Mr. Berkeley and Mr. Jadis were with their consent held out as
members and directors of the company in question. The letters
*of the former in particular are those of a man who has con- r*^r^
sented to take his chance of any advantage that might accrue ^ ^
to him from the scheme if successful, and, when he sees the prospect
of responsibility, seeks to repudiate the acts of those who have traded
on the respectability and influence of his name. Both clearly allowed
themselves to be held out to the world, and to those who, like the
plaintiff, wished to avail themselves of the facilities of transit promised
by the prospectus, as persons under whose sanction and authority
Henson was acting. The present case does not differ in any material
respect from that of Doubleday v. Muskett, 4 M. & P. 750, 7 Bingh.
110 (E. C. L. R. vol. 20). There, the defendants consented to become
directors^ bought shares, and attended meetings of a projected water
company, for which it was contemplated that an act of parliament
should be obtained ; having done no act to divest themselves of their
interest in the concern, it was held, that, though no act of parliament
was obtained, and the project failed, they were responsible for works
ordered at subsequent meetings of the directors which the defendants
did not attend. Tindal, C. J., there says : " The contract was entered
i&to on the 16th of January, 1826: it consisted of a tender sent in by
the plaintiff on that day in consequence of an advertisement inserted
on the 7th in a Brighton newspaper by order of the directors. Let ud
see the situation of these defendants at the time of that advertisement,
•^whether they were at that time directors, or had allowed themselves
to be held out to the world as such : for, by the terms of that adver-
tisement, the directors of the company became liable for the work in
Jnestion. The advertisement was as follows : — ' The directors of the
Brighton Water Company ard ready to reoelve proposals for ezoava-

157 COLLINGWOOD v. BERKELEY. T. V. 1863.

ling and removing the earth and chalk for forming one or more reser-
*1 581 ^^'^^»' ^^' ^^» *then, the defendants by their conduct authorized
-' the publication of that advertisement, they are equally liable
with the rest of the directors. It appears that they accepted the office
of directors, attended at several meetings of the directors, and pur-
chased the number of shares requisite to qualify them to act in that
capacity. They were therefore not only directors, but were actually
interested in the funds of the concern. It is sufficient, however, to
say that they were directors, and acted as such. Having retained
their character of directors up to the month of September,. 1825, what
have they since done to divest themselves of that character? It cer-
tainly was competent to them at any time to retire from the direction :
but, unless they have expressly done so, and have allowed their names
still to be used, they must take the consequences : they stand in the
like situation with the members of a partnership, who, after they have
seceded from the firm, still allow their names to remain exposed to
view over a shop door. It has been contended, on the part of the
defendants, that, in incurring the liability in question, the directors
exceeded their authority as directors, inasmuch as the prospectus held
out that an act of parliament would be applied for to regulate the
concerns of the company. No doubt such a course would be more
convenient for the government of such a body, as they would thus
obtain power to lay down pipes, to sue and be sued in the name of one
of their officers, and the like: but it nowhere appears that the
obtaining of an act of parliament was held out as a condition prece-
dent to the formation or the company; neither does the advertisement
say anything about an act of parliament. It is true that the pros-
pectus stated that an act would be applied for : but it was clearly
understood that the works were to go on in the mean time." So, here,
*15Q1 ^* clearly was intended that *the business of this company
J should go on before any actual incorporation.
Montague Smith, Q. C, and Kingdorij for the defendant Berkeley. —
There was no evidence to fix Mr. Berkeley with having given any
authority to Henson or any other person to enter into the contract
declared upon. All that appears, is, that Henson called upon Mr.
Berkeley and asked him to allow his name to be inserted as a director
of a company about to be formed. The usual prospectus was issued,
describing the objects proposed to be attained, and describing the
company as being intended "to be incorporated under the Joint-Stock
Companies Acts of 1857 and 1858." No shares were ever issued :
nor was anything done towards the formation of a company. Adver-
tisements, it is true, appeared in the public papers, and money was
received : but all this was done by Henson as the tool of Colonel
Sleigh. Not a farthing was ever paid in to any banking-account of
the company. Mr. Berkeley seems for the first time to have become
aware that Colonel Sleigh was interfering in the concern on the 22d
of May, 1862 ; and on the 30th he wrote to Henson telling him he
would have nothing more to do with it. The fact of Mr. Berkeley
consenting to become a director upon the terms contained in the pros-
pectus, gave no authority to Henson to use his name otherwise than
for the purposes of a company when formed and incorporated. [Erlb,
C. J. — ^You contend, that, as between Mr. Berkeley and the plaintiff

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 169

the latter had no right to conclude that the issuing of tickets for the
transit to British Columbia was accredited by Mr. Berkeley ?] Exactly
so. The question is as to the extent of the real authority which Mr.
Berkeley gave to Henson. [Byles^ J. — And also the extent of the
apparent authority induced by the acts of Mr. Berkeley.] There was
•neither original authority nor subsequent ratification. The r»igA
concluding sentence of the passage cited from the judgment of '•
Tindal, C. J., in Doubleday v. Muskett, shows that that case has no
application here. In Bourne v. Freeth, 9 B. & C. 632 (E. C. L. R. vol.
17), 4r M, & R. 512, it being in contemplation to form a company for
distilling whisky, the following prospectus was issued in May, 1825,
— "The conditions upon which this establishment is formed, are, the
eoncem will be divided into twenty shares of lOOif. each, five of which
to belong to A. B., the founder of the works ; the other fifteen sub-
scribers to pay in their subscriptions to M. & Co., bankers, Liverpool,
in such proportions as may be called for : the concern to be under the
management of a committee of three of the subscribers, to be chosen
annually on the 10th of October : 10 per cent, to be paid into the
bank on or before the 1st of June next." It was held that this pros-
pectus imported only that a company was to be formed, not that it
was actually formed; and that a person who subscribed his name
thereto, and who was present at a meeting of subscribers when it was
proposed to take certam premises for the purpose of carrying on the
distillerv, which were afterwards taken, and solicited others to become
shareholders, but never paid his subscription, was not chargeable as
a partner for goods supplied to the company. [Williams, J. — That
case, as well as Fox v, Clifton, 4 M. & P. 676, 6 Bingh. 776 (E. C. L.
R. vol. 19), Reynell v, Lewis and Wyld v. Hopkins, 15 M. & W. 517
and several others, are cited in Smith's Mercantile Law, 5th edit. 104,
as authorities for this proposition, — " The liability of a member,"—
that is, of a joint-stock company, — "commences with the commence-
ment of the company, and he is not responsible for contracts made
before that period by its intended members or directors, while prelir
minaries on the accomplishment of which he bad agreed to join the
•company are unaccomplished."] In Burnside v. Dayrell, 3 r«i gi
Exeh. 224, where an allottee in a projected railway company ^
had paid his deposit into the bank named in the prospectus,, which,
had been circulated with the defendant's sanction, his name appear-
ing therein as one of the provisional committee-men and as chairman
of the committee of management ; but the defendant had not personally
superintended the allotment of shares, and had taken no active part,
in the concern, and had been present once only at any meeting, when
he acted in the capacity of chairman, but dissented from the proceed-
ings: in an action by the plaintiff against the defendant for the re-
covery of his deposit, on the abandonment of the scheme, it was held
that the defendant was not liable. So, in Barker v. Stead, 8 C. B..
946 (E. C. L. B. vol. 60), it was held that one who merely assents to
his name being published in a list of a provisional committee of a
projected railway company, does not thereby impliedly authorize the
secretary or any one else to pledge his credit for goods supplied to or
work done for the company. [Willes, J. — There are more recent
which are not quite consistent with your argument. The fact
XV.— 8

161 COLLINGWOOD v, BERKELEY. T. V. 1863.

of the party being a director is more stringent than the fact of hit
being a member of the provisional committee.] In Cooke v. Tonkin,
9 Q. B. 938 (B. C. L. R. vol. 58), the defendant was by his consent a
member of the provisional committee of a projected company : accord-
ing to the prospectus, the aflfairs were to be under the control of a
managing committee : a managing committee was appointed, and then
the provisional committee ceased to act: after this, the solicitor to the
company, who had been appointed by the provisional committee,
gave orders for the publication of advertisements. In an action
against the defendant for the expense of inserting these, it was proved
that he had twice attended meetings of the provisional committee,

*1621 *^"* *^^^ ^® ^^^ ^^^ ^" *^® managing committee, nor a share-
J holder : and it was held that these facts constituted no evi-
dence for a jury, of the defendant having authorized the insertion of
the advertisements, nor of his liability. In Bright v. Hutton, 8 House
(Of Lords Cases 841, A. was a member of the provisional committee
<jf a projected railway company which had been provisionally regia-
tered, and the affairs of which were put under the authority of a
managing committee : he accepted shares, and paid a deposit on them,
but did no further act; and the scheme was abandoned. It was held
that on these facts he was not liable to a creditor for business done
under the orders of the managing committee towards completing the
projected undertaking and converting the association into a regular
company, and consequently that he was not liable as a contributory
under the winding-up acts. [WiLLES, J. — Is that consistent with
Ilutton V, Upfill, 2 House of Lords Cases 674?] That case is
observed upon by Lord St. Leonards in Bright v, Hutton, 3 House of
Lords Cases 888. The real question here is, whether the defendants
gave any authority for the doing of what was done, or held themselves
out to the world as having given such authority, — for, since the cases
of Reynell v, Lewis and Wyld v. Hopkins, the question has been
properly treated as one of agency, and not of partnership. There is
nothing in this prospectus calculated to induce any reasonable man
to assume that the directors authorized anything to be done or any
contracts to be entered into before the projected company was actually
formed.

Daly, in suppport of Jadis's rule, submitted that there was no
♦1631 ^v'^®*^^® whatever to affect him. Cut. ad^. vulL

J * Williams, J., now delivered the judgment of the court :(a)—

Upon this rule the question has been whether there was any
evidence for the jury, that the defendants were liable on the contract
stated in the declaration.

The contract was made between the plaintiff and HensoD. Henson
had given to the plaintiff a prospectus describing the defendants, among
others, as directors of the company therein mentioned, and hinwclf
(Henson) as secretary : and the plaintiff stated that he was induced,
after reading that prospectus, to make the contract in reliance on the
credit of Mr. Berkeley and another as directors.

Now, was there any evidence that the defendants^ had authoriwd
Hanson to make the contract for them, or that they by their permis*
aiofi were held out to the plaintiff as parties to the contract with him?

M T>e cai« was argaed before Brie, C. J., WiUiams, J., WiHes, J., aod Bylee^ /.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 168

The defendants contended that the prospectus contained merely a
proposal to form a company, and that their consent to become directors
was only conditional in case the company should be formed and regis-
tered, and that they had never attended at the offices or acted in the
directorship, and that there was no evidence that they held out to
the plaintiff that business would be carried on by their authority until
the above conditions had been fulfilled.

But we are of opinion that there was evidence to support the
verdict

The prospectus, although it speaks of a company to be formed and
registered, yet it also speaks of business actually going on for the
purpose of transport, — of past arrangements, — of matters in a course
of completion, — and of actual transport as about to commence forth-
with (that is, when the prospectus was issued). It ♦states, " that r^-toA
the overland route from Canada has been organized by the pro- ^
moters of the Overland Transit Company. Several surveys have
resulted in having a direct road, which, with a perfect organization
of land-transport, is at once available." Then, after describing the
route, it proceeds, — *' The corporation will forthwith organize a perfect
land-transport train of horses and spring-carts adapted for passengers
and goods, and erect log-shanties at intervals, &c, ; and cattle will be
collected at these stations." '' By the arrangements already in a state
of forwardness in Canada, from instructions sent out to its agents,
there can be no question but that the route will be placed in a perfect
state. Applications have been made to the legislative councils of
Columbia and Canada for charters." Ac. *'As the route from Fort
William to the Red River would require some delay to be put in a
state for traffic, the Overland Transit Company purpose, for the first
twelve months, that passengers should proceed to Fond du Lac," &c.,
&c " And, to obviate the necessity of the slightest delay in opening
up the first portion of the route to Red River, reciprocal arrangements
are in a course of completion, by which this company can without
any delay forward its passengers to Detroit, and thence to Chicago,
and thence to St. Paurs. ''The British Columbia Overland Transit*
Ciompany is enabled to start with the full advantages of the act for
limited liability, and may fairly expect to receive large dividends."

These passages express to an ordinary reader that operations respect-
ing transport had been and were then in Ae course of being carried on.
To a technical reader, there are expreaaions which might raise sus-
picion; such as the variety of names^ ''company," ''corporation,^
''promoters:" but the jury, {torn the wordd ana circumstances, had a
right to infer that it *waa intended to induce passengers to pay r*^^^
fares for immediate transport^ and applicants for shares to ^
pay immediate deposits : and, if so, there is evidence that the defendantf^
were by their consent held out'as directing that concern^ and therefore
bound by contracts eonnected thierewitb made in a regular course of
bosinessL

There is nothing to show thai the oom]^Dy had not been inoor^
porated, or' might not be at any nmrnenit Also, there is nothing
showing that- the companj wovld not adt, an it^ lawfully might, befbra
inooipM«tiott4 and thiuro is sfidencv ta Bhvrtfia^t' the words wen)

165 COLLINGWOOD v. BERKELEY. T. V. 1863.

intended to represent arrangements for transport actually existing;
for, tbe plaintiff states that he found arrangements made as described.
His evidence in effect is, that he was carried smoothly under the
described arrangements as far as St. PauPs, and might have been
carried on to his destination, if the company had been in credit with
their correspondents there who were expected to supply horses and
carts from thence, and who refused to act because they would not take
bills on the company for their services, but required cash.

The conduct of the defendants in accepting the oflSce of directors,
warranted the jury both in adopting any construction of the prospectus
which the words would bear to support the plaintiff's claim, and also
in disregarding the argument for them founded on the want of notice
of the proceedings in Copthall Court.

The evidence relating to that conduct on the surface is very concise.
Henson showed the prospectus, and asked each, " Will you be a
director?" Each in effect answered, "Yes, provided I am qualified
and indemnified." This is all that is on the surface. But beneath
there was matter of deep significance for the jury to consider. There
was some evidence that schemes for *companies abounded :

»166]

every letter refej*s to more than one; and Mr. Berkeley, in a

letter, observes to the effect that he was a director of so many that his
estimation would be perilled with his constituency. There was also
some evidence that men of established credit, willing to sell the use of
their names as directors to the projectors of these schemes, abounded
also. The language and the manner used on the occasion, that is to say,
a short question and answer, showed that the transaction was of
frequent occurrence.

There was no inquiry of the nature of the scheme, or of the
character of Henson or of his principal, and no indication that either
defendant ever intended to employ either thought or money in
furtherance of the scheme, whatever it might be. The truth was, that
Colonel Sleigh, a schemer in discredit, wished to obtain the cash of
the unwarjT upon a prospect of a land transport to Columbia. This
purpose might be effected, if he could hold out men of credit as
directing it. Mr. Berkeley, from his position in parliament, and Mr.
Jadis, a government oflScer, in the department of the Board of Trade,
would give assurance that the scheme was sanctioned by honour and
sense and money. Therefore Colonel Sleigh sent to buv the use of
their names ; and they sold it to him for an indemnity and a premium,
possibly of the value of 20007., to be taken from the funds of the
company;' that is, they were to have Colonel Sleigh's indemnity
against any responsibility caused by the use of their names, and, if
Colonel Sleigh by that use raised the whole or a sufficient part of the
projected capital of 600,000t, they were to receive each 200 paid-up
shares of 10/. each.

This transaction of the prospectus bears the meaning here attributed
to it. It authorized Henson or Sleigh to hold out that the defendants
*1671 ^^^^ TeaXly directing them *in obtaining fares from emigrants
^ for transport and deposits from applicants for shares. As
against these defendants, the jury were warranted in deciding that
they did whatever Henson by their authority represented they were
doing, within the limits of the operations described in the prospectus.

COMxMON «ENCH REPORTS. (15 J. SCOTT. N. S.) 167

and that therefore they were liable on the contract, within those limits,
which Henson made for them on the credit of their names.

It is a rule, that, when one of two innocent parties is to suffer by
the fraud of a third, he who gave occasion for the fraud should bear
the loss. Upon this principle, the decision ought to be against the
defendants, if there was a balance. The plaintiff is certainly an in-
oocent party ; but the defendants, though not guilty of direct fraudu-
lent intention, gave the occasion which made the fraud successful.

The jury were also warranted in thinking that the conduct of uhe
defendants after the interview with Henson, indicated that they had
intended all along to leave the management of the affairs of the com-
pany to the direction of the projectors, without interference on their
part. Upon any other supposition, it is strange that men in the posi-
tion of these defendants, living in London, if they intended to be real
directors, should not during two months make a single inquiry about
their company, or visit the oflSces, or send for Henson to know what
was going on. Strange, also, that their names should be advertised in
the Times for weeks, and they should not see it, and no one should
mention it to them, unless the nature of the transaction was under-
stood to be as last described. Still more strange, that neither of the
defendants interfered to inquire or remonstrate, when it was known
that contracts in their names had been made for transport, and that
the hardships and perils so shocked the *humanity of strangers r»i go
as to produce the letters signed " West Canada," and the inter- ^
ference of a member in parliament to endeavour to save the emigrants
from their fate. Mr. Jadis did nothing. Mr. Berkeley in his letters
expresses neither suspicion nor dissent in respect of the contracts
made : and those letters result in merely withdrawing his name from
the directorship, for the sake of avoiding responsibility after that
date, — leaving the liability for transactions previous to that date as it
might be established. The jury may have thought that the defend-
ants had trusted all arrangements to the discretion of the projector,
and that therefore they must trust now to an indemnity from him
against the responsibility brought by him on them.

The facts of this case are peculiar, and differ materially from those
that have been cited ; so that it is not worth the time to analyze them
further than to say, that in Doubleday v. Muskett, 7 Bingh. 110 (E. C.
L. R. vol. 20), 4 *M. & P. 750, two directors of a proposed company
were held liable for contracts made by the board without their know-
ledge before the company was formed, because they had consented to
a commencement of the works of the intended company. Here, the
defendants, as directors, according to one construction of the prospec-
tus, had represented that the works of the intended company had been
and were in operation. In Bourne v. Freeth, 9 B. & C. 632 (E. C. L.
B. vol. 17), 4 M. & R. 512, the defendant was a real shareholder, who
bad really paid up a deposit, and belonged to an entirely different
class from that of these defendants ; and a decision in his favour is of
DO avail for these defendants.

The question before us has been confined to the claim for breach of
contract : and we think the plaintiff has a right to recover an indem-
nity upon a count in form ex contractu ; and it is not relevant now to

160 COLLINGWOOD v. BERKELEY. T. T. 1863.

••1691 *^'^^^^''® whether he could have recovered the same indemnity
-• in form ex delicto, for holding out false representations, to the
damage of those who acted on them.

It may be true that the defendants did not themselves speak what
they knew to be false, and nevertheless they may be liable for holding
out false representations : and, if it was supposed that the Chief Jus-
tice had expressed an opinion upon the law to the contrary of this at
the trial, his meaning was not understood. Bulo discharged.

END OF TRINITY VACATION.

*170] *IN THE EXCHEQUER CHAMBER.

SIB JOHN BROCAS WHALLEY SMYTHE GARDINER. Bart.,
V. ELIZABETH JANE JELLICOE, Widow. July 4.

Judgment of the Common PleM (12 C. B. N. S. 568) affirmed.

This was an appeal against a decision (by a majority) of the Court
of Common Pleas, making absolute a rule to enter a verdict for the
plaintiflF in an action of ejectment brought by him to recover the pos-
session of certain lands in the county of Lancaster, called " The Clerk
Hill Estate," which he claimed to be entitled to under the will of his
grandfather, Sir James Whalley Smythe Gardiner, Bart., deceased.

The appeal was argued on the 19th and 20th of June, 1863, before
Pollock, C. B., Wightman, J., Crompton, J., Channell, B., and Black-
burn, J., by

Sir Hugh Cairns^ Q. C. (with whom were Manisty, Q. C, and Udall),
for tbe appellant, the defendant below, and by

The Solicitor -General (with whom were Mellish, Q. C, and Quain),
for the respondent, tbe plaintiflF below.

The Court took time to consider ; and their unanimous judgment
was now delivered by

Pollock, C. B. — We are all of opinion that the judgment of the
court below should be affirmed.

♦1711 ^^ ^^ *^® ^^^^ point made by Sir Hugh Cairns for •the de-
-' fendant, it seems to us that the estates limited by the deed of
1814 were legal estates. The parties seised of the legal estate convey
expressly to the use of Robert and his sons, and then to the uses de-
clared in the will of the testator, which are clearly legal uses, to which
the trustees having the legal estates are by the will directed to limit
tbe legal estate. This could hardly be denied, except as to the estates
to arise under the shifting-clause,' and, even if the estates to arise
und'er that clause were merely equitable estates, as the preceding es-
tates are clearly legal, the result would be that the plaintiff claiming
under a limitation of the legal estate would be entitled to succeed in
this ejectment, and the defendant's remedy under the shifting-clause
would be in equity only.

We think, however, that the deed is intended and does carry out

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 171

the meaniDg of tbe testator, by conveying the legal estate to releasees
to uses, so that the legal estate may vest as the uses arise, in the events
apon the "happening of which the estates directed by the will to be
limited arise, and which are clearly intended by the will to be legal
estates : and we think that this extends to the estates to arise under
the shifting-clause, as well as to the other limitations.

As to the second point, which is the real question in the case, we
agree with the construction put upon the shifting-clause by the ma-
jority of the court below. We thiuk that the real construction is,
that, in the event of the estates coming together, within the meaning
of the shifting-clause (whatever be the construction of the words
*' coming to the possession"), tbe person next in remainder is to come
in as if the person who would otherwise have come into possession
were dead without issue ; so that the real effect of the clause is, to let
in the person who would be next in remainder if the person who
otherwise would have had both *estates were dead without r*i7o
issue; in other words, to accelerate the next remainder. '-

We think that it would be a strained construction, to hold that the
words "that the person next in remainder," &c., should come in **as if
the party were dead without issue," meant that the whole will should
be treated as if the person were actually out of existence without issue
for all the purposes of the will :*and we do not think that the testator
would have been likely so to have directed, if he had contemplated
that he would thereby be excluding female issue, who would never
have taken the Gardiner estates, but who could come in under the
very limitation now in question.

We think that the meaning of the words "the person next in re-
mainder," &c., is, that such next remainder is to come into play, and
that the remainders over continue unaffected and are to arise according
to the limitations, subject to be divested again by the operation of the
shirting-clause, if that clause should come into operation by the estates
again coming together within the meaning of the shifting-clause.
The judgment of the court below is therefore aflBrmed.

Judgment affirmed.

CASES •

ABQUED AND DETERMINED

COURT OF COMMON PLEAS

JElif[iQelmn3 €ttm,

TWENTY-SEVENTH YEAR OF THR REIGN OF VICTORIA. 1863.

The Judges who usually sat in banco in this Term, were, —
Erle, 0. J., Byles, J.,

Williams, J., Keating, J.

HANS RINGLAND, the younger, by WILLIAM RINGLAND his
Prochein Amy, v. JOSEPH LOWNDES, Clerk of the Burslem
Local Board of Health. Nov. 14.

A party who attends before an arbitrator, though under protest, cross-examines his adver-
sary's witnesses, and calls witnesses on his own behalf, thereby waives all ol^jections to th«
proceedings which do not go to the competency of the tribanaL

Under the Public Health Act (II A 12 Vict c. 63), where a disputed claim to compensaUon
is to be settled by arbitration, the award is, by s. 124, to be made " within twenty-one days
after the appointment of the arbitrator, or within such extended time, if any, as shall have been
duly appointed by him for that purpose." By s. 125 it is provided, that, in case the arbitrators
neglect or refuse to appoint an umpire for •fv«n dayt after beiug requested so to do by any
pnrty, the sessions shall, on the application of such party, appoint an umpire. And by s. 12l(
it is further provided that the time for making an award under the act shall not be extended
beyond the period of three months from the date of the submission or from the day on which
the umpire ehall have been appointed, as the ease may be.

In 1856, the plaintiff sustained damage from the construction of works by a local board, and
in 1858 made a claim for compensation. He afterwards obtained a rule for a mandamus com-
manding the board to make compensation. Arbitrators were afterwards (in January, 1861)
appointed to assess the amount, under s. 123. These having refused to appoint an umpire, tbo
plaintiff applied to the Easter sessions to appoint one, but failed in consequence of the want of
a notice of his intention to make such application. The required noUce having been given, a
second application was made at the Midsummer sessions, and one J. was named as umpire, bat,
as his consent had not been obtained, no formal appointment was then made. A third appli>
eation was made at the Michaelmas sessions, and J. was on (he \Uh of October appointed
amplre, and accepted the appointment.

COMMON BENCH EEPORTS. (16 J. SCOTT. N. S.) 173

On the IZth of Nomther, tha ampira (not having enlarged tXt time for making hie award)
•ppointed the 29th for entering npon the arbitration. The counsel for the board, being informed
of this objection, proteeted against the ampire's going on with the reference, bat etiil attended,
cross-examined the plaintiff's witnesses, and called witnesses for the board ; and at the close
of the business intimated to the umpire that the board would relg upon their proteet in caee the
award ehonld be againet tkem. The umpire made his award in favour of the plaintiff on the
30th of December.

In an action upon the award, —

Held, — 1. That the appointment of the umpire in reality took place at the Michaelmas ses-
sions, ftod was in time, and consequently the award was duly made within three months from
tbe umpire's appointment.

2. That, although the umpire had failed to comply with the requirement of tbe 124th and
126th sections of the act by enlarging the time for making his award within twenty-one days
of his appointment, that defect was cured by the attendance of the board and their taking part
in the subsequent proceedings.

3. That the plaintiff was entitled to a mandamus (under the Common Law Procedure Act,
1854), commanding the board to make and levy a rate to satisfy the amount of the award and
the eosts of the reference, although the six months limited by the 89lh section of the Publie
Health Act for the making of retrospective rates had elapsed since the damage was done, — the
action having been commenced within six months after the making of the award, and it not
appearing that the plaintiff had been guilty of any laches.

4. That it was no answer to the claim for a mandamus, that by possibility the board might
have funds enough in hand to satisfy the demand, without making a fresh rate.

This action was brought against the defendant, who is the clerk of
the Burslem local board of health, to obtain the sum of 1361. 16s. as com-
pensation for damage, and 154/. for costs, und^r an award dated the
30th of December, 1861, and also a writ of mandamus commanding
the Burslem local board of health to levy a rate in pursuance of the
Public Health Act, 1848, for the payment to the plaintiflF of the said
sums of money.

*The cause came on for trial before Byles, J., £it the Stafford r^i-inA
Summer Assizes, 1862, when a verdict was taken for the plain- ^
as, by consent fpr the sums named in the declaration, subject to a
special case.(a)

(a) The pleadings, which were to form part of the case, consisted of a declaration upon the
award, which concluded as follows : — '' And for that the plaintiff having become entitled by
reason of the premises and by virtue of the said award of the said umpire to have the said
moneys paid to him by the said board out of the general or special district rates to be levied
under the said act, and a reasonable time having elapsed for the said board to make and levy
a rate under the said act for the payment to the plaintiff of the said moneys, and it having
become and being the duty of the said board to make and levy a rate according to the provi-
sions of tbe said act in that behalf for the said moneys so payable by them to the plaintiff, and
the plaintiff being personally interested in having the said rate so made and levied as aforesaid,
and In being paid the said moneys out of such rate within the meaning of the Common Law
Proeedore Act, 1854, and the plaintiff, being so interested as aforesaid, duly demanded of and
requested the said board to make and levy a rate in pursuance of the said statute for the said
moneys so payable to him, and interest thereon, and the costs occasioned him by reason of the
non-payment thereof, and to pay him the said moneys, interest, and costs out of such rate when
made, levied, and received by them, but the said board have wholly neglected and refused so
to do : and the plaintiff claims 300/. and a writ of mandamus commanding the said board to
make and levy a rate in pursuance of the said act, for the payment to the plaintiff of the said
moneys so due and payable to him as aforesaid out of the said rates, and interest and costs as
•foresaid, and to proceed with all due diligence to collect and raise the said rates and the said
moneys, and to pay him the said moneys and interest and costs out of the said rate when so
made, levied, collected, and raised."

Tbe picas were, — first, that Johnson did not make any such award as alleged, — secondly,
that Johnson was not duly appointed umpire as alleged, — thirdly, that Johnson was duly
appointed such umpire as aforesaid in the said matters and dispute by the court of general
quarter sessions of the peace holden at Stafford, Ac, at Midsummer, to wit, on the 1st of July,
1861, on the application of the plaintiff according to the said statute, and that he the said T.
Johnson accepted the said appointment^ and thereupon ought, pursuant to the said statat«| to

175 lilNGLAND v, LOWNDES. M. T. 1863.

*1751 *^' ^'^ *^® y®*^ ^^^^' *^® Public Health Act, 11 & 12 Vict.

-* c. 63, was applied to the town of Burslem, in Staffordshire;
and, by virtue of the powers therein contained, the local board of health
*1761 ^^^ ^^^* ^^^^ *began to lay dowp a system of sewers withiu

J the precincts of the town, for the drainage thereof.

2. Hans Ringland, the younger, the plaintiflF in this action, is the
♦1771 ^^'^^^ ^^ four houses in Waterloo Road, *Burslern: and the

^ defendant is tHe clerk to the Burslem Local Board of Health.

3. In the year 1856, the said houses of the plaintift* were alleged to
have been materially damaged by the operations necessary to con-
struct the said sewers ; and in 1858 application was made by the
plaintiff's attorney to the local board of health for the town of Burs-
lem, through their attorney, for compensation, and a request was also
made that they would appoint an arbitrator under the 123d section of
the Public Health Act, to whom the matter in dispute might be
referred.

4. A rule was subsequently obtained for a mandamus, commanding
the board to make compensation; and this rule was made absolute:

have made and pabliahed his award within three calendar months from the day on whioh he
was so appointed, to wit, the said Ist day of July, bat he wholly failed so to do, and did nothing
whatever under the said appointment; and that thereupon, after the expiration of the said three
calendar months from the said 1st of July, the said matters and dispute ought to have been
again referred to arbitration, pursuant to the provisions of the said act, as if no former refer-
ence or appointment of arbitrators or umpire had been made; yet that afterwards, and after
the expiration of the said three calendar months, to wit, on the said 14th of October, without
any fresh or new reference of the matters and dispute aforesaid being made, or any arbitrator
being appointed or. reappointed by or on behalf of the plaintiff or the said board, the said T.
Johnson was appointed umpire by the said court of quarter sessions as in the declaration men-
tioned, on the application of the plaintiff, and without the consent and against the will and
protest of the said board, which last-mentioned appointment of the said T. Johnson as umpire
as aforesaid was and is the appointment in the declaration mentioned ; wherefore the defendant
said that the said appointment in the declaration mentioned was and is null and void, — fourthly,
that the said T. Johnson, having been appointed umpire on the said 14th of October, as in the
declaration mentioned, ought, according to the provisions of the said act, within twenty-one
days after his said appointment, to have made his said award, or to have extended the time
for making the same; yet that he did not within twenty -one days after his said appointment
«make the said award, or extend the time for making the same, but wholly failed to make the
same within twenty-one days after his said appointment or within any extended time duly
appointed by him for that purpose; and so the defendant said that the said T. Johnson did not
make his said award within the time required by the said statute in that behalf; and that
thereupon the said award is wholly null and void. Issue thereon.

Second replication to the third plea, — that the plaintiff and the said board duly waived all
objections to the said second appointment of the said T. Johnson, and consented and agreed
to his acting under such second appointment

Demurrer thereto, the ground of demurrer alleged being, ** that the authority of the court of
quarter sessions under the statute to appoint an umpire having been duly exercised at one
sessions, no waiver or consent would give it authority to re -appoint him at a subsequent ses-
sions." Joinder.

Second replication to the fourth plea, — that the said T. Johnson duly extended the time for
making the said award beyond the said twenty-one days, and duly made his said award within
such extended time, and within three months from the day on which he was appointed umpire,
•coording to the statute in such case made. Issue thereon.

Third replication to the fourth plea, — that the plaintiff and the said board duly waived all
Ql^eotions to the said T. Johnson acting as umpire after the expiration of the said twenty-one
days, and duly consented and agreed to his acting as umpire up to and at the time when he
■ude his said award, and to his then making his said award.

Demurrer thereto, the ground of demurrer stated in the margin being, ** that the authority
of the umpire under the statute having expired, no waiver or consent could restore it." Joinder.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) IH

but eveataally the *plaintiff, on the 17th of December, 1860, r«-i»7g
appointed Henry Ward to act as arbitrator under the said ••
statute on his behalf, and gave the said board notice of the appoint-
ment, and required them to appoint another arbitrator on their behalf
within the time required bj the statute, or otherwise the said Henry
Ward would proceed ex parte: and thereupon, on the 2d of January,
1861, the board appointed Richard Stone, of D^rby, to act as arbitra-
tor on their behalf.

5. The arbitrators having refused to appoint an umpire, an applica*
tion was made by the plaintiff, under the 125th section of the Public
Health Act, on the 11th of April, 1861, at the Easter sessions, to the
court of quarter sessions for the county of Stafford, to appoint an
umpire under the said section.

6. The application was resisted by the board on several grounds ;
and was refused, upon the ground that the plaintiff had not complied
with the rules of the court of quarter sessions, by giving seven days'
notice to the board of his intention, as required by the practice of that
court.

7. The required notice having been given, a second application was
made at the Midsummer sessions, on the 3d of July in the same year,
to the court of quarter sessions. What took place at those sessions
was as follows : — The counsel for the plaintiff moved for the appoint-
ment of an umpire. After hearing counsel for the board, who opposed
the application, the court decided that they would appoint an umpire ;
and, after further discussion, Mr. Thomas Johnson, of Lichfield, archi-
tect and land surveyor, was fixed upon by the court as such umpire.
Mr. Johnson was not present ; and neither side was instructed as to
whether he would consent to act. It is the duty and practice of the
clerk of the peace to make an entry of the acts and proceedings of the
court, from which the orders of *the court are subsequently r*i 79
formally drawn up ; and there is no other entry made by the ^
chairman or otherwise of motions or orders of the kind referred to.
No order would in the course of practice be formally drawn up unless
the assent of the umpire to act had been previously obtained ; but the
representation of counsel at the sessions would be treated as sufficient
toT that purpose. On this occasion, Mr. Johnson was not present, and
neither side was instructed as to whether he would .or would not con-
sent to act. The clerk of the peace advisedly abstained from making
any entry of or relating to any nomination or any appointment of aU
umpire , but, if the assent of Mr. Johnson had been obtained or signi-
fied before the end of the sessions (and there was time to communicate
with him), the clerk of the peace would have then informed the court
of that assent, and made an entry of the appointment of Mr. Johnson,
and the order would have been afterwards drawn up and an office
copy sent to Mr. Johnson without the further intervention of the
parties. No assent having, however, been obtained or signified, no
minute or record whatever was made of any appointment or order;
and none was drawn up. The clerk of the peace, upon being subse-
quently applied to as to what had been done in the matter, stated that
DO order had been made; his view being, that no order was made, the
consent of the umpire not having been obtained.

8. At the following quarter sessions, on the 14th of October, 1861^

179 RINGLAND v. LOWNDES. M. T. 1863.

another application was made to the said court of quarter sessions for
the appointment of an umpire. The application was resisted by
counsel on behalf of the board, on the ground that a valid appoint*
ment of umpire was made at the Midsummer sessions, notwithstanding
*1 801 ^^^^ ^^ entry was made of it in the books of the court; and that,
-' as the umpire *had failed to make his award within the period
of three months from the date of his appointment, the matter referred
to him should be again referred to arbitration, as if no former refer-
ence had been made, pursuant to the provisions of the statute; and
consequently that the proceeding should begin de novo, and new arbi-
trators be appointed, who might agree upon an umpire; and that, the
court having once at the former sessions exercised its authority under
the statute to appoint an umpire, it had no jurisdiction or authority
to again appoint an umpire in the same matter at a subsequent sessions
without the requirements of the statute having been duly complied
with. Notwithstanding these objections, the court, after hearing the
counsel for the plaintiff, who dissented from the view of the facts
taken on the other side, appointed the said Thomas Johnson to be
umpire (whose assent had been then obtained); the chairman at the
same time saying that the order was made out on the condition of the
applicant, namely the plaintiff, taking on himself the responsibility
of its validity. The appointment was entered and formally made out
by the clerk of the peace in the words following, —

" Staftbrdshire. At the general quarter sessions of the peace of our
Lady the Queen, holden at Staflford, upon Monday, the first week
after the 11th of October, to wit, the 14th of October, in the twenty-
fifth year of the reign, of our Sovereign Lady, Victoria, &o., and in the
year of our Lord 1861, before, Ac, &o., and others their fellows, jus-
tices of our Lady the Queen assigned to keep the peace in the county
aforesaid, and also to hear and determine divers felonies, trespasses, and
other misdemeanors committed in the same county.

" John William Phillips, sheriflF.
'' In the matter of the claim for damages by Hans '^'Bingland, the
♦181] younger, The Local Board of Health of Burslem, and the
Public Health Act, 1848.

'* Upon the motion of Mr. Mottram, of counsel for Hans Ringland,
the younger, upon reading the affidavit of F. C. Lewis, and after
hearing Mr. M'Mahon, of counsel for the said local board of health of
Burslem. It is ordered that Thomas Johnson, of the city of Lichfield,
architect, shall be and he is hereby appointed, under the provisions of
the said Public Health Act, 1848, umpire to determine all disputes
between the said Hans Bingland, the younger, and the local Board of
Health for Burslem, in reference to the amount of compensation (if
any) to be paid by the said Hans Bingland, the younger, by the said
Burslem local board of health for damage done by the sewerage
operations of the said local board of health to four houses belonging
to the said Hans Bingland, the younger, situate in Waterloo Boad,
Burslem, in the said county of Stafford.

" By order of the court,
"R. W. HaxVD, deputy clerk of the peace.

9. The said Thomas Johnson on the 18th of November appointed
the 29th of November the next for entering upon arbitration ; and,

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 181

upon the meeting for that purpose, the counsel for the Burslem board
of health objected to and protested against Mr. Johnson acting as
umpire and proceeding with the arbitration, and handed him a written
protest setting forth the following grounds of objection : —

'* First, — that the appointment of arbitrator on behalf of the said
Hans Ringland, the younger, was notified in writing to the board on
the 24th of December, 1860, and the appointment of arbitrator on
behalf of the board was made on the 2d of January, 1861, and notified
to the said Hans Ringland, the younger, ^on the 4th of January, r«-i on
1861 : and that the said arbitrators did not make their award, '-
or extend the time for doing so, or appoint an umpire within twenty*
one days from the last-mentioned day :

" Second, — that no award was made within three months from the
date of the submission or notification as aforesaid, or of the appoint*
ment of the arbitrator on behalf of the board, and the notification
thereof to the said Hans Ringland :

" Third, — that the first application to the court of quarter sessions
for the appointment of an umpire was not made within three months
from the notification of the appointment of the said last-mentioned
arbitrator, or of the date of the said submission or first-mentioned
appointment, or the notification thereof, or before or until the 11th of
April last, and that the application was refused :

''Fourth, — that the next application for the appointment of an
umpire was made at the quarter sessions held in July last, when an
order was made appointing you such umpire ; which order was bad,
for the reasons before mentioned, and under which you did not make
any award for the space of three months or otherwise :

•* Fifth, — that, as the last-mentioned order was not proceeded with, it
was not competent for the court of quarter sessions to make a subse-

Juent order, and therefore that the order obtained by the said Hans
England, the younger, at the quarter sessions held on the 14th of
October last, and which you are now proposing to act upon, is bad
and void in law, and any proceedings taken thereunaer will be
Toid and of no effect: and we shall dispute the legality of such
proceedings."

10. The said Thomas Johnson having then stated that he had not
within twenty-one days from the date of his appointment in October
extended the time for ^making his award, or done anything r«i go
whatever under his appointment before the said 18th of No- ^
vember, the counsel for the board further protested on this ground
also against his proceeding with the arbitration: and said that, if he
did so, the board would take steps to set aside the proceedings, and
handed in a second written protest, in the words following : —

^' Take notice that the Burslem local board of health also object to
your acting as umpire in this matter, and protest against your pro-
ceeding with this arbitration, on the ground that you did not make
your award or extend the time for making your award under the
appointment and order of the court of quarter sessions holden in
October last, in manner required by law ; and that any proceeding
taken by you will be void and of no effect."

11. The said Thomas Johnson, the umpire, thereunon stated, that,
without taking upon himself to determine the valiaity of the pro-

183 MNGLAND v. LOWNDES. M. T. 1863.

ceedings, he thought it his duty to proceed with the reference. The
counsel for the board then said, that, in that case, he would attend
under protest : and he thereupon attended under protest ; and, at the
close of his case, said he should rely on his protests for setting aside
the proceedings as unauthorized, supposing the award were against
him. The umpire proceeded with the arbitration; and, after sitting
two entire days, and examining the witnesses on both sides, and
hearing the addresses of the respective counsel, published his award,
dated the 30th of December, 1861, to the following effect : —

" I do hereby find, award, and adjudge that the said local board of
health of Burslem do, on or before the 16th of January next, pay to
the said Hans Bingland, the younger, the sum of 1352. I65. as com-
pensation for the damage which I do hereby award* hath been done
*1R4.1 *^y ^^® ®^*^ local board of health by their said sewerage
-I operations to the said four houses belonging to the said Hans
Ringland, the younger, situate in Waterloo Boad, Burslem, in the said
county of Stafford : And I do hereby further award and adjudge that
the said local board of health of Burslem do pay to the said Hans
Ringland, the younger, all the costs of and consequent upon the said
reference and of this my award."

13. On the 12th of February, 1862, the two several appointments
of arbitrators, or submission to arbitration, and the said appointment
of umpire, were made a rule of this court.

14. On the 21st of February, 1862, the Burslem local board of
health took out a summons to oppose the taxation of costs on the
award, on the ground that they should have been ascertained by the
umpire, and could not be the subject of taxation. by an officer of one
of the superior courts. After hearing counsel, Crompton, J., refused
to make the order ; and the costs were then taxed at 1642;

15. The Burslem local board of health still refused to pay the said
sum 186Z. 16s. so as aforesaid found due by the award, and the said
Bum of 154Z. costs : and * this action was then brought to enforce the
award.

The questions for the opinion of the court were — first, whether there
was any appointment of an umpire at the Midsummer sessions, or
whether the proceedings at those sesaions deprived the court of the
power to make a valid appointment at the October sessions, — secondly,
whether, though the umpire did not within twenty-one days after his
appointment at the Michaelmas sessions extend the time for making
his award, he had afterwards authority to proceed with the reference,
— ^thirdly, whether, if the above objections or any of them to his pro-
ceeding with the reference were valid, there was any such waiver of
♦1851 *^^^^ *® 8*^® ^^ restored to him jurisdiction to proceed with
^ the reference, — fourthly, whether the plaintiff is entitled to^a
mandamus to make a rate, as prayed in the declaration.

Sayes, Serjt. (with whom was Beatby), for the plaintiff. — The first

Question is, whether the appointment of the umpire was made in time,
^here is nothing in the statute (11 & 12 Vict. c. 63) to require this
to be done at the next sessions after the parties had referred the matter
and the arbitrators neglected or refused to appoint an umpire. The
mode of referring to arbitration under this act is regulated by the
128d and three following: sections. Section 128 enacts^ that, '* i

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 185

of dispute as to the amount of any cornpensation to be made under
the provisions of this act (except where the mode of determining the
same is specially provided for), and in case of any matter which by
this act is authorized or directed to be settled by arbitration, then,
unless both parties concur in the appointment of a single arbitrator,
each party, on the request of the other, shall appoint an arbitrator, to
whom the matter shall be referred; and every such appointment
when made on the behalf of the local board of health shall (in the
case of a non-corporate district) be under their seal and the hands of
any five or more of their number, or under the common seal in case
of a corporate district, and, on the behalf of any other party, under his
hand, or, if such party be a corporation aggregate, under the common
seal thereof; and such appointment shall be delivered to the arbitra-
tors, and shall be deemed a submission to arbitration by the parties
making the same; and, after the making of such appointment, the
same shall not be revoked without the consent of both parties, nor
shall the death of either party operate as a revocation : and if for the
♦space of fourteen days after any such matter shall have arisen, r*i o/>
and notice in writing by one party who has himself duly ap- '-
pointed an arbitrator to the other party, stating the matter to be referred,
and accompanied by a copy of such appointment, the party to whom
notice is given fail to appoint an arbitrator, the arbitrator appointed
by the party giving the notice shall be deemed to be appointed by and
shall act on behalf of both parties : and the award of any arbitrator or
arbitrators appointed in pursuance of this act shall be binding, final,
and conclusive upon all persons and to all intents and purposes whatso-
ever. Section 124 enacts, that, *' if before the determination of any
matter so referred, any arbitrator die or refuse or become incapable
to act, the party by whom such arbitrator was appointed may appoint
in writing another person in his stead ; and, if he fail so to do for the
space of seven days after notice in writing from the other party in
that behalf, the remaining arbitrator may proceed ex parte ; and every
arbitrator so appointed shall have the same powers and authorities as
were vested in the arbitrator in whose stead the appointment is made ;
and, in case a single arbitrator die, or become incapable to act, before
the making of his award, or fail to make his award within twenty-
one days after his appoiniment, or within such extended time, if any, as
skaU have been duly appointed by him for that purpose, the matters
referred to him shall be again referred to arbitration under the pro-
visions of this act, as if no former reference had been made." The
125th section enacts^ *' that, in case there be more than one arbitrator,
the arbitrators shall, before they enter upon the reference, appoint by
writing under their hands an umpire, and, if the person appointed to
be umpire, die, or become incapable to act, the arbitrators shall forth-
with appoint another person in his stead ; and; in case *the arbi- r^-tgn
tratora neglect or refuse to appoint an umpire for seven days ^
afier being requested so to do by any party to the arbitration^ the court of
general or quarter sessions shall, on the application of such party,
appoint an umpire ; and the award of the umpire shall be binding,
final, and conclusive upon all persons and to all intents and purposes
whatsoever ; and, in case the arbitrators fiul to make their award
within twenty-one days after the day on which the last of them was

18T RINGLAND v. LOWNDES. M. T. 1863.

appointed, or within such extended time, if any, as shall have been
duly appointed by them for that purpose, the matters referred shall
be determined by the umpire; and the provisions of this act with
respect to the time for making an award, and with respect to extend-
ing to (a) the same in the case of a single arbitrator, shall apply to an
umpirage." And the 126th section provides **that the time for
making an award under this act shall not be extended beyond the
period of three months from the date of the submission or from the day on
which the umpire shall have been appointed, as the case may be." The
first application to the sessions, which was made at Easter, 1861,
failed for want of the seven days* notice ; the second, which was made
at Midsummer, was rendered abortive for want of the consent of the
umpire. The appointment made at the Michaelmas sessions, there-
fore, was clearly in time. The next objection is one of the merest
form : it is that the umpire allowed twenty-one days to elapse before
he proceeded with the reference, and omitted to enlarge the time.
Now, the enlargement of the time for making an award is a voluntary-
act of the arbitrator or umpire ; it needs no consent nor any particular
form, — Russell on Awards, 2d edit. p. 142 ; and it need not even be
*1881 ^^ writing, unless writing be required *by the submission: and

-' here the statute does not require it. At all events, if this be a
valid objection, it was waived, as any mere irregularity may be, by
the appearance of the board before the arbitrator, and taking the
chance of a decision in their favour: Russell, p. 195. Their con-
tinued attendance before the umpire, and calling witnesses, materially
enhanced the expense of the proceedings. Appearing to defend,
operates a waiver of the want of a notice of trial. [Byles, J. — In
Holt V, Meddowcroft, 4 M. & Selw. 467, the plaintifif had obtained a
rule for a special jury, which was regularly struck, but a common jury
panel was returned together with the special jury panel, and at the
trial, none of the special jury attending, it was proposed on the part
of the plaintiff to try the cause by a common jury; to which the
defendant's counsel objected that this could not regularly be done ;
but the judge, finding a common jury panel annexed, was of opinion
that he ought to try the cause, and accordingly the cause was tried,
and there was a verdict for the plaintiff, — the defendant's counsel appear^
ing and making defence. On a rule for a new trial, it was contended
for the plaintiff that the objection was waived by the defendant's
appearance. But Lord EUenborough said : " Wbat might have been
the effect of the defendant's appearing at the trial and making a
defence without any protest against trying the issue, it is unnecessary
at present to inquire, becaase we find that the defendant did protest
and did all in his power to resist the proceeding. I cannot agree that
it amounts to a coAsent on the part of the defendant, because, being,
as it were, tied to the stake, and dragged on to trial, he endeavours to
make the best of it." Keating, J., referred to In re Hick, 8 Taunt.
694 (E. C. L. R. vol. 4). There, by the terms of a reference to arbi*
tration, the two arbitrators were to appoint an umpire before entering
*1891 ^^^^ *con8ideration of the matters in difference, and to make

^ their award before a certain day or such time as they or any

(a) Thif Uander oeoiin in all the •ditions ef the itfttatet.

C03IM0N BENCH REPORTS. (15 J. SCOTT. N. S.) 189

two of them sbould appoint. The arbitrators, htfort appointing an
umpire, enlarged the time, and afterwards held a meeting, at which
the parties attended : and it was held, that the parties, being aware of
these facts, and having afterwards attended, could not now make any
objection on the ground of the enlargement of the time having been
made before the appointment of the umpire.] In Tyerman v. Smith,
6 Ellis & B. 719 (E. C. L. R. vol. 88), on a compulsory reference under
the Common Law Procedure Act, 1854, it was held to be no objection
to entering up judgment on the award under s. 3, that the award was
made more than three months after the arbitrator entered on the
reference, though the order of reference named no time, and no written
consent for enlarging the time had been given by the parties, — it
appearing that the parties had, within a month before the making of
the award, acted upon the reference as still subsisting ; sjich acting
estopping them from saying that the circumstances necessary to give
jurisdiction to the arbitrator did not exist. Coleridge, J., there said :
"The analogy between this case and Andrews v. Elliott. 5 Ellis & B.
502 (E. C. L. R. vol. 85), 6 Ellis & B. 838 (E. C. L. R. vol. 88), is
complete. Mr. Bramwell was a judge under the nisi prius commission,
and could have tried the case with a jury; and the statute [17 & 18
Vict. c. 125, s. 1], under certain limited conditions, gave him power
to try by himself, — ^a power derived, not from his general authority,
but from the statute. We and the Court of Exchequer Chamber
thought that the plaintiff, by his consent, was estopped from denying
that the statutable conditions had been fulfilled. So, here, the master
had the power to take a compulsory reference ; but he could make his
award only within the three months, unless there were a written con-
sent for the •enlargement of the time. Now, the plaintiff's r*i qq,
conduct has been such as to estop him from contending that '-
there was no written consent." And Erie J., concurred. [Byles, J. —
Was there any protest there ?] There was not. [Bylbs, J. — What
is the effect of a protest?] In the matter of Palmer and The Metro-
politan Railway Company, 31 Law J., Q. B. 259, where a similar
(question arose upon tne 23d section of the Lands Clauses Consolida*
tion Act, 8 & 9 Vict. c. 18, Mellor, J., after time taken to consider,
said: " There is evidence, I think, that the applicant intended to take
advantage of the award if in his favour, ana object if it was against
him- I think the applicant is estopped by his own conduct from>
taking advantage of the objection to the want of authority in the
umpire ; pr, if it be not an estoppel, there is, 1 think, a new parol
contract to go on with the arbitration upon the terms of the statutory

Eowers."(a) In Holdsworth v. Wilson, 8 Law Times (N. S.) 484, it was-
eld by the Exchequer Chamber (affirming the judgment of the
Court of Queen's Bench), that, under the Public Health Act, arbitral
tors may appoint an umpire after the twenty -one days limited by s.
126 for making their award have expired without their having
enlarged the time, provided such appointment be within thh time
limited by s. 126 for making the umpirage.

(a) In Lawrenoe v. Hodf^ion, 1 Y. A J. 10, it wm held, that aa objeoiion that tbe ttea fee
■aking an avard haa not b«en dnlj enlarged, is waived by proceeding in the reforenee with ^
knowledge of that faot

C. B. H. 8., VOL. XV.— 9

190 RINGLAND v, LOWNDES. M. T. 1863.

*1 911 ^^^^f Q- C. (with whom was iTMafwn), contri.(a) — *This award
J has not been made within the time prescribed by the statute ; and
no act has been done by the board, or by those who represented them,
-which can give it any validity. The umpire having been appointed
trader s. 125, was bound under s. 124 to make his award '* within twenty-
one days after his appointment," or within the extended time which
he had given himself by a due enlargement. Admitting that parties
may consent to an extension of the twenty-one days, thoughthere has
been no enlargement, yet, where they have not consented, but on the
contrary have expressly dissented, an award made without that for-
mality is a nullity. When they attended before the umpire on the
29th of November, the board did not know whether the time had
been enlarged or not. The moment they did learn the fact, they did
all they could to express their dissent. Can their formal and reiterated
*1991 P^^^®^* ^® treated as nothing? Not a single *case has been or
J can be cited where it has been held that a party who attends
lander protest is bound by the proceedings. [Keating, J. — Would
there have been a consent to the umpire's making an award in favour
of the board ?] No. The statement made by counsel at the close of
the proceedings clearly does not amount to a consent. Tyreman v.
Smith was a case under the Common Law Procedure Act. The
defendant attended without objection, and, after the award was made,
he applied to have it set aside on another ground. There was a
perfect consent to the jurisdiction throughout. In Palmer and The
Metropolitan Eailway Company, there was no protest, no intimation
was given by the parties of their intention to avail themselves of the
objection : that, therefore, was a case of express consent to the juris-
diction. And all that Holdsworth v. Wilson decides, is, that although
the twenty-one days have elapsed, the arbitrators have still enough
power left in them to appoint an umpire. It is submitted that the
4oard did not waive their protest by attending before the umpire
to protect their interests, and calling witnesses. The case of Holt v.
Meddowcroft, 4 M. & Selw. 468, was followed by this court in Lycett
V. Tenant, 4 N. C. 168, 5 Scott 479, 6 Dowl. P. C. 436, where Tindal,
C. J., said : " It would be a most dangerous precedent if we were to
hold that a defendant, who, dragged to the stake, and protesting
against the regularity of the proceeding, answers the attack of his
opponent's counsel, is to be deemed thereby to have waived his

(a) The points marked for argument on the part of the defendants were as foHows :—

" I. That the proceedings at the Midsammer sessions amounted to a ralid apf^otntment of
vinpire, and that conse^aentlj the coart of quarter sessions could not, unless the parties hid
hegun de noTo, make another appointment at the October sessions :

<* 2. That the umpire* not having made his award, or extended the time for making it, within
twenty-one days from the dAte of his appointment, had no jurisdiction afterwards to proceed
with the reference :

• •' 3. That, the appointment of umpire haring been made eompulaorily under the statute,
against the wishes of the local board, there never was in fact any oons ent to or waiver of the
objections to his proceeding with the reference :

" 4. That, the umpire having allowed the time for exercising his jurisdiction to expire, no
eoBsent or waiver could afterwards give or restore to him jurisdiction :

" 6. That a mandamus omnnot be granted as prayed, because there i« no raggestlon that tfa«
ordinary remedies are not suffleient, and also because the compensation claimed for fhe alleged
Injury to the plaintilTs houses in 1856, and the costs fixed by taxation in iB'ebruary, 1862, are
not, nor is either of them, a eharge or expense incurred within six months of the making of
^e^rpposed rate, pursuant to the Public Health Act, 1848, 11 A 12 Viet. c. 88, s. 89."

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 192

objection to the trial." In Da vies i;. Price, 6 Law T. (N. S.) 713, where
it was held, that an objection that arbitrators were exceeding their
authority in awarding damages, was not waived by the defendant's
attending under protest and cross-examining when the question of
damages was gone into, Crompton, J., in delivering the judgment of
the court, says : " We *are disposed to think, that, as the arbi- r#i no
trators persisted in going into the consideration of damages '■
after objection taken by the defendant, he did not waive his objection
by attending subsequent meetings under protest, no case having been
brought to our notice in which a substantial objection has been held
to be waived by subsequent attendance before the arbitrator under
protest." In the case of Re Haigh's Estate, 81 Law J., Chanc. 420,
the Court of Chancery referred to arbitration certain matters in
dispute between the parties to the suit of Haigh v, Haigb, and also
between the same parties as to the estate of H., the testator in the
cause : those disputes related to certain collieries, their management,
and the dealings with them for several years. One of the parties had
a son, who was well acquainted with the mining accounts, and had
assisted his father in the business, and this party applied to the arbi-
trator to allow his son to be present ; but that officer refused to permit
him to be present, on the ground of his behaviour in the matter. A
short-hand writer, whose presence the same party wished, to take
notes at the meetings, was also excluded. Upon a motion to set aside
the award, it was held, that, without going into the question whether
the award did or did not do substantial justice between the parties, it'
must be set aside, the exclusion by the arbitrator of the son and the
short-hand writer having been made without adequate ground, and the
acquiescence of the party complaining in the proceedings under the
reference after their exclusion not being such as to deprive him of his
right to have the award set aside.

The award was clearly bad, not having been made within three
months after the appointment of the umpire, as required bv s. 126.
Tie appointment took place on the 8d of July, at the Midsummer
sessions, and the award was not made until the 20th of December.
♦The party was bound to go to the next sessions, viz. the Easter pj^g^
sessions, and could not by his blunder give himself an increased
period. [Bylbs, J.— Where the legislature intend that a thing shall
be done at the next sessions, it is usually so expressed.] Unless it is
held that the application must be made to the next sessions, there is .
practically no limit at all. [Byles, J.— It must be done within a
reasonable time.] And that must at all events have reference to the
period limited by the statute for the making of the award. There is
nothing to require the appointment of the umpire by the sessions to
be in writing. The case states that '' Mr. Thomas Johnson was fixed
upon by the court as such umpire." What was that but an appoint-
ment? Whose duty was it to obtain Mr. Johnson's assent? It has
heen held that an appointment of a clerk of the peace by parol is .
valid. [Bylks, J.— He is not appointed by the sessions.] Ko: by
the loid lieutenant: but it is done in sessions.

Assuming the objections to be untenable, a mandamus under the 68tli ^
and subsequent seeiions of the Common Law Procedure Act, 1854,
can only be granted on the same grounds as the prerogative writ of

194 RINGLAND v. LOWNDES. M. T. 1863.

mandamus by the Court of Queen's Bench. It will not be granted
where there is another remedy ; and the granting or withholding it ia
discretionary with the court. Besides, here, the plaintiff comes toa
kte: Burland v. The Local Board of Health of Kingston-upon-HuU,
82 Law J., Q. B. 17. The damage was done in 1856; the demand for
compensation was made in 1858 ; and, after haying obtained a rule
for a mandamus, the plaintiff appointed his arbitrator on the 17th of
December, 1860: and this action was not commenced until the 16th
of May, 1862. Now, the 89th section of the Public Health Act only
authorizes the local board to make and levy rates " prospectively, in
♦1951 ^^^®^ ^^ ^*^^® money for the payment *of future charges and
-' expenses, or retrospectively, in order to raise money for the
payment of charges and expenses which may have been incurred at
any time within six months before the making of the rate,^^ [Byles, J.
— ^The amount was not ascertained here until the miaking of the award.
It was impossible to know beforehand what the award would be.l
If a mandamus be directed to issue here, the board would be bound
to make and levy a rate, even though they might have funds enough
in hand to satisfy the plaintiff's claim; for, nothing but absolute
obedience can be returnea to the writ.

HayeSy Serjt., in reply, was desired to confine himself to the objec-
tion that the umpire had omitted to enlarge the time for making his
award within the twenty-one days, to the question of waiver, and to
the right to a mandamus. The enlargement not being necessarily in
writing or made in any formal manner, it was enough if it was made
by parol at any time within three months after the appointment of the
umpire; consequently, by giving an appointment on the 13th of
November for the parties to come before him on the 29th for the
purpose of entering upon the umpirage, the umpire sufficiently com-
plied with the requirements of the statute.- There was, therefore, a
sustantial enlargement within the three months- Then, the conduct
of the board was altogether inconsistent with their protest, and clearly
a waiver of the objection as to time. Davies v. Price, 6 Law T. (N.
S.) 713, w«s a case of excess of jurisdiction. An award may always
be set aside where the arbitrator has exceeded his jurisdiction; and
an objection on that ground is not waived by attendance before him.
This is in the nature of an irregularity, which may always be waived.
*1961 ^^^ l^oard had no right to attend and so *put the plaintiff to
expense, and lake their chance of catting aown the claim, and
then, finding the award adverse, rely upon their protest. As to the
mandamus, the case clearly falls within the provisions of t&e Comnxn
Law Procedure Act, and tKe plaintiff has been guilty of no laches
which ought to deprive him of that remedy.

Byles, J.(a)--I am of opiniom that our judgment it this oas^ musk
be for the plaintiff. The first objection to which oar atteodion has bem^
invited, — ^but which was not very strongly pressed by Mr. Ln^ — •
was, that an order was made at the Midsummer seaiions. 1^ tha wordl
^' order'* is to be understood in the sense of $ formal ordev of thq coort^
or even a memorandum or ratry in tho book c^ tbe elerk of ths
pe^oe^ there waa na snob thing. If it k to be i^nalood i« the aenaa
of li anbotwtiiJ f^poinlntcuDl^ Aier^ weiB iwme^ booa^M the party Bomi«^

COMMON BENCH HEPORTS. (15 J. SCOTT. N. S.) IW

nated had not intimated his acceptance of the appointment of umpire
until the next sessions. Supposing an order could have been drawn
up at the Midsummer sessions, what would it have stated? Simply
that Mr. Johnson was named umpire, subject to his acceptance of the
appointment, and that he had not intimated his acceptance. Clearly,
therefore, there was no appointment of an umpire at the Midsummer
sessions. Then, the Public Health Act not having limited the appli-
cation to the next sessions, as in the case of appeals against rates,
orders of removal, and the like, it seems to me that the party is at
liberty to go to any sessions, provided that is done within a reasonable
time. Accordingly they come at the next sessions but one, viz. the
Michaelmas sessions, and then Mr. Johnson is *formally ap- pigj
pointed umpire, and agrees to act. Unfortunately, however, *-
the sessions at which this appointment took place were held on the
14tli of October, and the parties did not go before the umpire until
the 29th of November, more than twenty-one days from the date of
the appointment, and there does not appear to have been any enlarge-
ment. I agree with Mr. Lush that this was an objection to the
umpire's proceeding. But, what sort of an objection? Not that the
umpire had no jurisdiction over the subject-matter, or that he was an
improper person, but that he had not gone through the formal act of
^ying. *' I enlarge the time for making my award," — which need not
be in writing or said in the presence of anybody, but may be said by
the umpire in the privacy of his own chamber, and whether he be
asleep or awake. But, assuming that to have been a serious and
fatal objection, if duly insisted upon, what has been the conduct of
the board ? Being informed by the umpire that he had not within
twenty -one days from the date of his appointment in October extended
the time for making his award, they by their counsel protest against
his proceeding, but say that they will nevertheless attend, and, if the
award should ultimately be against them, would apply to set asid#
the proceedings as unauthorized. Accordingly they appear, and cross^
examine the plaintiff's witnesses, address the umpire, and call wit^
nesses on their own behalf, and then, the award being against them,
insist that they are not bound by it, because they appeared and did
all this under protest. Gases have been cited in which it has beeft
held, that, where there has been a total absence of jurisdiction, thd
appearance of the party under protest before the tribunal does not

i>reclude him from afterwards availing himself of the objection. The
eading case upon the subject, which has been brought forward upon
all occasions *as long as I can remember, is. Holt v. Meddow- r»i go
croft, 4 M. & Selw. 467. But, what was the nature of the ^
objection there? A proper special jury had been struck, but a
common jury panel was returned together with the special jury panel,
and at the trial, none of the special jury appearing, it was proposed
on the part of the plaintiff to try the case by a oommon jury. The
defendant's counsel objected, and protested against the cause beinA
tried, — the statute relating to the nomination and striking of special
juries, 3 G. 2, c. 25, s. 15, expressly saying that "the jury so struck
shall be the jury to try the cause ;" but the trial was proceeded witk
notwithstanding, the defendant's counsel appearing and making
defence. And^ when this fact was urged as an answer to a motioia

198 RINOLAND B. LOWNDES. M. T. 1863.

for a new trial, Lord EUenborough said that he could not agree that
it amounted to a consent on the part of the defendant, because, being,
as it were, tied to the stsike and dragged on to trial, he endeavoured
to make the best of it. The distinction between that case and the
present is this, — that, there, the parties were before the wrong tribu-
nal, and here before the right tribunal ; there the objection was a
substantial one, and here only a shadowy and unsubstantial one.
Lycett V. Tenant, i N. 0. 168, 5 Scott 479, 6 Dowl. P. C. 436, was
also cited. In that case there was a variance between the writ of
trial and the issue : the objection was not to the jurisdiction of the
judge to try the cause, but that the plaintiff had brought down the
wrong issue to be tried. That, again, was a substantial and fatal
objection ; and, although the defendant appeared, yet, inasmuch as he
did so under protest, he was allowed afterwards to contest the validity
of the proceedings. Then, as to Davies v. Price, 6 Law T. (N. S.)
713, Crompton, J., in delivering the judgment of the court, certainly
*1991 ^^^^ ®^y ^ *^®7 ^®^® disposed to think, that, as the *arbi-

J trators persisted in going into the consideration of damages
after objection taken by the defendant, he did not waive his objection
by attending subsequent meetings under protest. Every word that
falls from that very learned judge is entitled to the most respectful
attention. But, what was the objection there ? The arbitrator had
persisted in taking into consideration the question of damages, and
thus assumed a power which the submission did not give him. That
again, therefore, was a substantial objection. In the case of Re Haigh's
Estate, 81 Law J., Chanc. 420, — which was a decision of the Lords
Justices, — the arbitrator had without sufficient cause excluded from
the room the son of one of the parties, and the short-hand writer ; and
the party affected by this exclusion had nevertheless proceeded with
the reference, — whether with or without protest, does not very clearly
appear. There the arbitrator had misconducted himself, and conse-
quently there is no analogy between that case and the present. I am
of opinion that an objection such as this, — which, after all, amounts
to nothing more than the mere omission to pronounce some formal
words, — is plainly waived by conduct like that here pursued. I think
we should be going against the weight of authority as well as against
reason and common sense, if we were to send the parties back to a
fresh arbitration on this ground, — more especially in a case where
the board seem to have been throwing every possible diflBculty in the
way of the claimant's obtaining compensation for the damage he has
sustained. I make this observation rather with reference to the next
point which we have to consider, viz. as to the mandamus.

Now, the granting or withholding of a mandamus under the Com-
mon Law Procedure Act, is to a certain extent in our discretion : and
•2001 ^^® difficulty which has *occurred to me, is, that the delay

-* which took place between the year 1856, when the damage was
done to the plaintiff's premises, and the year 1858, when his claim for
compensation was first brought forward, has not been very ^tisfacto-
rily accounted for. In construing the 89th section of the Public
Health Act, which limits the power of the board to make rates retro-
spectively to the raising of money for the payment of charges and
expenses which may have been incurred within six months^ the word

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 20D

" incurred" must, I think, be read with reference to the ultimate ascer-
tainment of the amount by arbitration or otherwise; for, it would be
impossible to make even an approximate rate, which would, I presume,
include the costs of the proceedings, until it was known what the
decision was. There is, therefore, no objection to the lapse of time
since 1858. And, although the delay between 1856 and 1858 is not
so satisfactorily accounted for, yet, when we see what the conduct of
the defendants has been in that part of the case which is fully before
the court, I cannot help thinking, that, if anything could have been said
as to that interval which would have assisted them, it would not have
been withheld. As, therefore, we decide on all the other points in favour
of the plaintiff, I think we are bound to give him tue full remedy
which the law allows, by directing that a writ of mandamus do issuer
Keating, J. — I entirely agree with the judgment pronounced by
my Brother Byles, and in the reasons which he has given. The dis-
tinction which he has pointed out between the cases relied upon and
this case, seems to me to be the valid distinction upon the only ques-
tion which might have presented some difficulty, viz. as to how far the
attendance of the parties before the umpire operated a waiver of the
objection *(which I think was a valid one) that the umpire had r^oni
omitted to enlarge the time for making his award within the ^
twenty-one days prescribed for that purpose by the statute. That
distinction runs through all the cases, and will be found on examina-
tion to reconcile them all. Wherever it has been held that the con-
tinued attendance before the arbitrator waived an objection of which
the party was cognisant, it will be found that the objection was to the
competency of the tribunal ; and that is an objection which cannot be
80 waived. None of the cases, however, as to arbitrations, struck me
with much force except that of Davies v. Price, 6 Law Times (N. S.)
713. But that case, when carefully looked at, will be found rather to
be an authority in favour of our present decision. Orompton, J., says
that the court are disposed to think, that, as the arbitrators persisted
in going into the consideration of the damages after objection taken
by the defendant, he did not waive his objection by attending subse-
quent meetings under protest, — no case having been brought to their
notice in which a substantial objection had been held to be waived by
subsequent attendance before the arbitrator under protest. The ob-
jection there was, that the arbitrators were assuming a jurisdiction
over matters which the parties had not submitted to them ; and this
the court held to be a substantial objection. The judgment of the
court, however, did not proceed even upon that, but upon this, — that
the declaration was upon the express submission of the parties, and
not upon an implied submission arising from the acts and conduct of
either of them in the course of the reference, and consequently the
evidence of acquiescence was irrelevant and inapplicable. In truth,
it was an attempt to alter the nature and extent of the submission by
the conduct of one of the parties to it. I must say I should have
been surprised if any case could have been cited to *sustain r^on^
such an objection as this. It seems to me to be a contradiction ^
in terms, to say that, having protested against the umpire^s right to
proceed, the party protesting may, nevertheless, not only attend and
watch the proceedings, but cross-examine his adversary's witnesses,

202 RINGLAND v. LOWNDES. M. T. 1863.

and call witnesses on his own part, and then say to the arbitrator, —
" If you decide in my favour, I am content ; but, if you decide against
me, I will stand upon my protest, and move to set aside your award."
I entirely agree with my Brother Byles, that that objection cannot be
sustained, and that the plaintiff is entitled to our judfgment.

That being so, then arises the question as to the mandamus to com-
pel the board to make and levy a rate to satisfy the plaintiff's claim.
Notwithstanding the ingenious argument of Mr. Lush, that the board
may be so well provided with funds that a rate may be unnecessary,
it is highly probable that the only remedy that will be available to
the plaintiff is the granting the writ. If the board choose to satisfy
the claim without proceeding to make a rate, we might possibly be
disposed to accept that as a compliance with the mandamus.

With regard to the effect of the 89th section of the Public Health
Act, which was relied upon- by Mr. Lush as a bar, — the six months
limited by that act for the making of a retrospective rate having
elapsed since the time when the injury complained of was sustained,—
it seems to me that the time we are to look to, is, the time of making
the award and the bringing of the action. Until the award was made,
the amount was not ascertained.

For these reasons, as well as for the reasons given by my Brother
Byles, I think the plaintiff is entitled to judgment and to a writ of
mandamus as prayed. Judgment for the plaintiff

♦2031 *^^-^ MOSES MONTEFIORE, Bart., Chairman of the Al-
J liance British and Foreign Life and Fire Assurance Com-
pany, v. ISAAC LLOYD. Nov. 10.

Th« defendBDt «zeeated a bond bb surety to an insarane« oompany for the fidelity of A., who
was appointed an agent of the company at Adelaide, and who was about to and afterward* did
enter into partnership (as merchants) with B., also an agent of the company at that place. The
condition of the bond was, that, if A., his heirs, executors, Aa, should well and truly p^y and
account for all moneys receiyed hy Mm, the obligation should be roid : — Held, that the defendant
was not responsible under this bond for moneys receired by the firm of A. A B., notwithstanding
he was aware at the time be signed the bond that A. wa« about to become partner with B.

Held, also, that the surrounding or " co-existing " circumstances were admifsible for the pur-
pose of explaining what might be ambiguous in the condition.

This was an action brought by the plaintiff as chairman of the Al-
liance British and Foreign Life and Fire Assurance Company, — a
company incorporated under an act of 5 G. 4, c. cxxxvii., — against the
defendant upon a bond given by him to the company for 600Z. under
the circumstances hereinafter set forth. Under a judge's order made
by consent, the following case was stated for the opinion of the court
without pleadings : —

1. In the year 1854, George Henry Fox, who resided and carried
on business at Adelaide, in Australia, was the agent of the Allianoe
company at Adelaide; and by a letter, dated from Adelaide the 27th of
November, 1854, the directors of the company were informed of his
desire that John Sanderson Lloyd should be associated with him ia
the agency of the said company at Adelaide. The following is a copy

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 203

of that part of the letter addressed' to the secretary of the company
in which such desire is expressed : —

"I have now to regnest you will be good enough to intimate to
the directors my desire that the name of Mr. John Sanderson Lloyd
should be associated with mine in the power of attorney for the con-
duct of this agency, as I am about taking that gentleman into partner-
ship. I may observe that Mr. Lloyd has been in my counting-house
for some time, and is nephew to Mr. J. S., one of the partners of the
firm of S. & Co., and you could apply to that gentleman as a referee,
in case *of need. My more particular object in writing this, r*oo4
is, that I contemplate visiting England next year; and it is ^
important that the interests of the company should not sufler during
my absence. You will be furnished with the necessary security for
Mr. Lloyd. I should also further mention thai Mr. Lloyd has had for
some time the management of this branch of business in our counting-
house ; and I consider him in every way fully qualified to manage
eflSciently the agency of the company."

2. On the 14th of February, 1855, a resolution was passed at a
meeting of the board of directors of the company, as follows: — *'That
Mr. John Sanderson Lloyd, of Adelaide, be associated with Mr. G. H.
Fox in the managenoent of the agency there, as suggested in a com-
munication from the latter gentleman dated the 27th of November
last, and that he be required to furnish security to the extent of
500/."

3. On the 1st of March, 1855, F. A, Englebach, on behalf of the
company, wrote to Fox a letter of which the material portion is as
follows : —

"I am happy to inform you, that, in accordance with your request,
the directors have associated Mr. J. S. Lloyd with you in the control
of the Adelaide agency ; and a new power of attorney will conse-
quently be prepared, and forwarded by the next mail. It will be
necessary that Mr. Lloyd execute a bond for 600?., to which Mr.
Theodore Lloyd, of the Stock Exchange, and Mr. Isaac Lloyd, of
Bristol, have undertaken to become sureties."

4. The J. S. mentioned in the extract of the letter of the 27th of
November, 1864, declined to become one of the sureties for J. S.
Lloyd, but wrote on the 7th February, 1855, a let*^r to the defendant,
who is the father of J. S. Lloyd, as follows : —

" Dear Isaac, — I send you on the other side an *extract of a r^oos
letter from G. H. Fox to' the Alliance company, whose agency '•
we were the means of obtaining for him. It will be necessary, if J.
S. Lloyd be associated with him in the agency, that a bond signed by
two parties for 6001 be entered into. As it is only insuring his in-
tegrity, it is a nominal thing : but I cannot be one, on account of my
articles of partnership, which expressly prohibit any one of the part*
ners from becoming surety. I should think J. S. Thomas might not
have the same objection; and your own name would do for one. I
enclose a form."

5. The extract alluded to in the last-mentioned letter was an exact
copy of the extract set out in the first paragraph of this case. The
said letter, with the aforesaid extract on the other side of it, was
received by the defendant shortly after its date ; and he as well as

205 MONTEFIORB v, LLOYD. M. T. 1863.

one Theodore Lloyd consented to become sureties for John Sanderson
Lloyd.

6. On the 14th of March, 1855, the defendants duly executed and
delivered to the company the bond on which this action is brought,
which bond was as follows : —

"Know all men by these presents, that we John Sanderson Lloyd,
of Adelaide, in the colony of South Australia, merchant, Theodore
Lloyd, of the Stock Exchange, London, gentleman, and Isaac Lloyd,
of Bristol, in the county of Somerset, gentleman, are jointly and
severally held and firmly bound to the Alliance British and Foreign
Life and Fire Assurance Company in the penal sum of 500^. of good
and lawful money of Great Britain, to be paid to the said Alliance
British and Foreign Life and Fire Assurance Company, their succes-
sors or assigns, for which payment to be well and faithfully made we
bind ourselves, and each of us our and each of our heirs, executors,
*2061 ^°^ administrators, *jointly and severally, firmly by these
^ presents, sealed with our seals. Dated the 14th day of March,
1855 :

** Whereas, the above-bounden John S. Lloyd hath been nominated
and appointed by the board of directors of the Alliance British and
Foreign Life and Fire Assurance Company to be an agent(rt)of the
said company at Adelaide, and on such his nomination it was stipu-
lated by or on behalf of the said company and agreed to by the said
John S. Lloyd, that he, together with the above-bounden Theodore
Lloyd and Isaac Lloyd, should enter into the above-written bond or
obligation for securing the fidelity of the said John S. Lloyd :

'* Now, the condition of the above-written bond or obligation is
such, that, if the said John S. Lloyd, his heirs, executors, or adminis-
trators, or some or one of them, shall and do from time to time and
at all times hereafter when and so often as he or they shall be there-
unto required by the actuary, secretary, or other officer of the said
company, well and truly pay or cause to be paid unto the directors of
the said company, some or one of them, or to such person or persons
as they or he shall order, direct, or appoint, all such sum and sums of
money as shall be by the said John S. Lhyd had and received as or by
way of premiums for assurances effected with the said company, or
otherwise howsoever on account and for the use and benefit of the
said company, or with which he shall be intrusted by or on account
of the said company ; and also shall and do from time to time and at
all times hereafter when and so often as he or they shall be thereunto
required by the said actuary, secretary, or other officer, render to the
♦2071 ^^ *directors, some or one of them, a true, just, and perfect
-* account of all and every sum and sums of money that shall
be hy him had and received, or paid, laid out, and expended for or on
account of the said company ; and also shall and do well, truly, justly,
and honestly in every respect behave and conduct himself in his
said office or employment of agent to the said company, — then the
above* written bond or obligation is to be void, otherwise to be and
remain in full force and virtue."

(a) It wu stated in the oeiie, that the word « an " was, before the execution of the bond, written
over the word « the " which last-mentioned word was part of a printed form, and had been pra-
rionsly straok oat.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 207

The bond was also duly executed by John Sanderson Lloyd and by
Theodore Lloyd.

7. On the 8d of April. 1855, J. W. Collins, on behalf of the
company, wrote a letter to Fox, of which the material part is as
follows : —

'* I now beg to forward a power of attorney constituting John S.
Lloyd, Esq., an agent of the company, and also enclose a bond for his
signature, which, as he will perceive, has already been executed by
the sureties to whom I referred in my last."

The power of attorney referred to in the last-mentioned letter was
duly executed on the 28th of March, 1855, by the president and
directors of the company, who thereby ordained, nominated, consti-
tuted, authorized, empowered, and appointed Jonathan Binns Were,
George Henry Fox, and John Sanderson Lloyd, all of Adelaide in
the colony of South Australia, merchants, jointly^ and each or either of
them separately, the true and lawful attorney and attorneys of the said
company to assure buildings, goods, and other property in Adelaide
and elsewhere against loss or damage by fire, subject to certain
conditions not material to this case.

8. The said Jonathan Binns Were mentioned in the aforesaid power
of attorney, had been since 1851 appointed by the president and
directors of the said company an agent of the said company, and had
been *authorized and empowered by them by power of attor- r*ooQ
ney, either jointly with the said G. H. Fox or separately, to ^
insure goods, buildings, and other property in Adelaide and elsewhere
against loss or damage by fire, subject to the same conditions as men-
tioned in the aforesaid power of attorney of the 28th of March; 1855 ;
but since February, 1852, the said Jonathan Binns Were resided at
Melbourne, and entirely ceased to act as agent for the company,
though the power of attorney was not actually taken away from him,

9. In June, 1855, the said John Sanderson Lloyd entered into
partnership with Fox at Adelaide ; and they there carried on business
under the name, style, and firm of O. H. Fox & Co. until the said firm
failed, as hereinafter mentioned.

10. On the 19th of December, 1855, the president and directors of
the company duly executed a power of attorney by which they
nominated, appointed, and authorized the said G. H. Fox and John S.
Llovd, both of Adelaide, in the colony of South Australia, merchants,
trading under the firm of G. H. Fox & Co,, jointly^ and each and either
of them separately, to be the agents of the said company to assure
buildings, goods, and other property in Adelaide and elsewhere
against loss or damage by fire, subject to certain conditions which are
not material to the present case.

11. In February, 1859, the aforesaid firm of G. H. Fox & Co.,
which said firm consisted as aforesaid of the said George Henry Fox
and the said John S. Lloyd, failed, and was adjudicated insolvent in
the court of insolvency in South Australia ; and the estate of the
said firm was wound up and administered in the said court.

12. At the time of its failure, the aforesaid firm of G.H. Fox &Co.
was indebted to the company in the sum of 4502. 11^. for premiums
received by the said * George Henry Fox and John S. Lloyd as r#on9
agents for the said company since the date of the aibre- '-

209 MONTEFIORE v. LLOYD. M. T. 1863.

mentioned bond. Of this sam 8382. 18^. 2d, was due in respect of
premiums received for fire-insurance, and 1111. 12«. lOrf. was due in
respect of premiums received for life-insurance. The said company
proved for the sum of 450/. 11^. on the joint estate of the said firm
in the said court of insolvency, and received thereon a dividend at
the rate of oa. Sd, in the pound, amounting to 1182. 65. 5d. ; and the
company have not received any other sum of money in respect of the
aforesaid sum of 4502. 11^.

18. The defendant objects to the admissibility in evidence of the
documents and matters referred to and stated in the second, third,
fourth, and fifth paragraphs of the above case.

The question for the opinion of the court was, — ^whether the defend-
ant was liable on the aforesaid bond to the said company in respect
to the unpaid portions of the said sums of 8882. 18^ 2d. and 1112. lis.
lOd, or either of them, or any part thereof.

The court was to be at liberty to draw any inferences from such of
the above facts as were admissible in evidence which a jury might
have drawn.

If the court should be of opinion in the affirmative in respect to
the unpaid portions of both the said sums, then judgment was to be
entered up for the ulaintifif for 8322. 6«. 7d. and costs of suit.

If the court should be of opinion in the affirmative as to the unpaid
portion of the said sum of 8382. 18s, 2d,, and in the negative as to the
unpaid portion of the said sum of 1112. 12t. lOd., then judgment was
to be entered up for the plaintifif for 2492. I85. Ilc2., with costs of
suit.

If the court should be of opinion in the affirmative as to the un^Mud

*2101 P^^^^^ ^^ ^^^ ^^^ ^^™ ^ nil. *l2s. lOd., and in the negative

-I as to the unpaid portion of the said sum of 8882. 18s. 2d.^ thea

judgment was to be entered up for the plaintiff for 822. 6s. 9d,^ with

costs of suit.

If the court should be of opinion in the negative in respect to the
unpaid portion of both the said sums, then judgment of nolle prosequi,
with costs of defence, was to be entered up for the defendant.

Lush^ Q. C, (with whom was Cohen), for the plaintiff.(ft) — The cir-
cumstances under which the defendant consented to enter into the
suretyship are clearly admissible in evidence as against him. No
doubt, any act done by the creditor which has the effect of altering
the position or increasing the risk of the surety, without his consent,
discharges him. But here nothing was done which was not known
and contemplated by all the parties at the time the defendant executed
the bond. The principal obligor having under the circumstances dis-
closed by the case entered into partnership with a third person, can
the surety escape responsibility bv saying that the moneys received
by the firm were not received by his principal 7 If an agent employs
a clerk, a receipt of money by such clerk is a receipt by the agent.

(a) Th« points marked for trgument on Uie part of Uie plklnUff wero ■■ follows : —

« 1. Tiiat the bond Nod ob ronder* tho dofoadani liablo in respeet of moneys rioilTnd bj
bim ■■ acent for the company, tbongh he may have received them joiaUy with Fox :

'< 2. That the worda ' an mgemt,' which said worda are in the aforesaid bond, may be aiplaSaed
by showinf what was known to and intended by the parties :

«(8. That nothinf hi^pened since the ezecatioo of the bond to discharge the defendant ftoa
his UabiU^ as iwety."

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 210

I^ instead of employing a clerk, be takes a partner, and the partner
receives money, why is not that equally a receipt by him ? Some
*case8 which may be relied upon on the other side are clearly r#n-t^
distingnishable. The first in order of time is Bellairs v. Ebs- ^ ^
worth, 8 Gampb. 58. It was there held,, that if A. become bound to
B. under condition that C. shall truly account to B. for all sums of
money received by C. for B.'s use, and C. afterwards, with B.*s know-
ledge, takes D. as his partner, the guarantee does not extend to sums
of money received by C. for B.'s usq after the formation of the partner-
ship. And Lord Ellenborough said : " The defendant was surety for
Philip Nott, and not for Mingay, Nott & Ca When the plaintiffs
intrusted their agency to the new firm, the defendant's responsibility
was at an end. He by no means undertook for the good conduct of
any future partner with whom P. Nott might associate. The recital
and the whole scope of the condition show that the suretyship was
confined to P. Nott individually." There, the partnership was a new
act not contemplated by the surety at the time of entering into the
bondy and the creditors had made a new appointment of the firm
instead of the individual, whereby they increased the liability of the
agent. The case may well be sustained upon that ground. Similar
in principle is the case, of Moon v. The Alderbury Union, 8 Exch.
590. There, the plaintiff' was a co-surety with K. in a bond given by
6. to the guardians of a union, conditioned for the due accounting to
them of moneys received by him as treasurer. At the time the bond
was entered into, B. was a member of a banking firm into which the
moneys of the union were afterwards paid and drawn out by the
guardians by checks in their own name. The firm became bankrupts,
and B. having ceased to be treasurer, the guardians demanded of the

K^ intiff as such surety the balance due from B. the late treasurer.
e plaintiff, in ignorance of 'the facts, paid the money : and it was
held that the sureties were not ^liable on the bond, and that r^oio
the plaintifi^ having paid the money in ignorance of the facts, *-
was entitled to recover it back. Parke, B., in delivering judgment,
there says : " For moneys so paid to two or more partners, the surety
for one is not responsible, according to the cases cited, of Bellairs v.
Ebsworth, and The London Assurance from Fire v. Bold, 6 Q. B. 514
(E. C. L. E. vol. 38). Those cases show, that, if a pjerson is surety for
another for the due accounting for moneys received by him, the
receipt of the moneys by that person and his partner is not the same
as the receipt by him alone^ because the surety may be willing to be
aoooantable fcMr one individual, but not for him and his partner; and
a payment to one partner is a payment to both." There, the position
of the surety was, without his knowledge^ altered by the act of the
creditors. That case, therefore^ like Bellairs v. Ebsworth, was essen-
tially different in its circumstances from the present case. The Lon-
don Assurance from Fire v. Bold» it is submitted, was not well decided.
There, the condition of a bond given by the defendant to the plaintiff^
after reciting that A. bad been appoints agent for the plaintiff which
employment he had accepted, and undertaken to perforin the trnsta
ttereof, was cteelared to be, that, if A. should, during his continuance
in such employment, faithfullv demean and conduct himself and,
when required, account for ana pay to the pkantiff all moneya whioli

212 MONTEFIORE v. LLOYD. M. T. 1863.

he bad received or should thereafter receive for the plaintiff's use,
the bond should be void. A declaration on the bond set out the con-
dition, and averred, that, while A. remained in the employment of the
plaintiff as agent as aforesaid, A. received for the use of the plaintiff
moneys amounting, &c., but did not when required account, &c. : plea,
that A. did not, while he remained in the service of the plaintiff, as
*21^1 ^^^^ agent as in the declaration mentioned, receive for *the
-• use of the plaintiff the sums mentioned. The Court of Queen's
Bench held that the plaintiff did not support the issue by proof that
A. and B., as partners, were employed by the plaintiff as agents, and
in that character had jointly received money for the plaintiff's use, —
it appearing that A. had never been employed by the plaintiff or
received money for him solely : and that no difference would be made
by proof that the defendant knew that A. was to be employed only
as partner with B. '* When a party," says Lord Denman, " makes
himself surety for the conduct, not of A. and B., but of A., the strong-
er proof you give that he knew the relation in which A. and B. stood
to each other, the stronger you make the inference arising from his
mentioning only A. Suppose the condition recited that the two were
joint agents, and then spoke only of the conduct of one, would not
that be a strong proof that the suretyship was intended to apply only to
the separate acts of that one ? Mr. Kelly's comment upon Bellairs v.
Ebsworth is very ingenious ; but the case is quite against him." The
court, therefore, assume that Bellairs v, Ebsworth governed the case
before them ; whereas the facts show that the two cases are essentially
different.

Montague Smith, Q. C. (with whom was H. T. Cole\ contri.(a) — ^The

defendant by this bond only became responsible for the acts of John

*2141 ^' ^^^y^» ^^^ ^^^ those *of the firm of Fox & Co. The inten-

J tion of the parties to the bond is only to be collected from the

instrument itself: no extrinsic evidence is admissible to vary or ex-

Elain it. There is no ambiguity : the recital is, that John S. Lloyd
as been appointed an agent of the company ; and the condition is for
the due accounting by him of all moneys which shall be received by
him on account of the company. The firm received the money ; and
the company proved for the amount against their estate. Even if ex-
trinsic evidence could be admitted, the case is governed by The Lon-
don Assurance from Fire v. Bold, 6 Q. B. 514 (E. C. L. B. vol. S3).
The court is, in effect, called upon to overrule that case. Wightman,
J., there says, — '* The recital is the proper key to the meaning of the
condition." And after referring to Hassell v. Long, 2 M. & Selw. 868,
he adds : " Here the recital does not contain a word referring to any
agency but that of Addison. Then Mr. Kelly raises the question
whether the receipt by Addison k Boult is a receipt by Addison. On
ordinary principles, each party is liable for receipts by either. But
the question here is, not to what extent the one can make the other

(a) The points marked for argmnent on the part of the defendant were as follows : —

'' I. That the defendant is not liable under the bond for moneys reeeired by John Sandenon
Lloyd under the faets stated in the ease :

'<2. That. he is not liable in respect of moneys reoeited by John Sanderton Uoyd JoiBtly
with Fox under a Joint appointment:

** 8. That the parol evidence referred to in the ease is not admissible to add to, eonlndieti
«r explain the terms of the bond."

COMMON BENCH REPORTS. (15 J, SCOTT. N. S.) 214

liable to the employer, but whether the defendant became surety for
the acts of both."

lAoh, in reply. — Omitting the fact of the knowledge of the surety
that the partnership existed at the time of signing the bond, the case
of The London Assurance v. Bold is not adverse to the present plain-
tiflf. At the time the defendant executed this bond, he knew his son's
intention. The fact of the contemplated partnership was communi-
cated to him by means of the extract from Fox's letter of the 27th of
November. The bond may have two meanings, according to the sur-
rounding circumstances. Primfi facie, it would mean moneys which
came to the hands of John S. *Lloyd as agent. But, if it was r»oi5
known at the time that he was going to become the partner of *■
Fox., it may well mean moneys which came to the hands of the firm.
It is only by looking at the surrounding circumstances that the
meaning and understanding of the parties can be ascertained. There
is in reality no case which, fairly considered, can be said to militate
against the plaintiflF's right to recover.

Erle, C. J. — I am of opinion that our judgment in this case must
be for the defendant. If the surrounding circumstances had shown
that the bond could have no operation unless the construction sought
to be put upon it by the plaintiflf were the true one, I am clear that
those surrounding circumstances ought to be taken into account. But
I think the words of the bond are stronger according to the defend-
ant's construction. The defendant's undertaking amounts to this, —
*' I undertake to be surety for the integrity of John Sanderson Lloyd,
and am willing to be answerable for any moneys of the company
which may come to his hands." The contention on the .part of the
plaintiff is, that the defendant not only undertook to be responsible
for moneys received by John Sanderson Lloyd individually, but for
partnership receipts also, — for moneys of the company which might
come to the hands of Fox & Co. The words of the bond, however,
are not so. Let us, then, look at the surrounding circumstances. The
defendant's suretyship originated in a proposal that John Sanderson
Lloyd should enter into partnership with Fox, — a general partnership,
not for the receipts of these premiums only. Fox and Lloyd might
very well have become partners as merchants, and yet each of them
might have been a separate agent for an insurance company. The
first letter set out in the case discloses the fact of Fox's *in- r«2i 5
tention to come to England ; and hence his desire to have some ^
one associated with him in the agency. It is clear, that, during the
time that Fox might be in England, though Lloyd might individually
receive premiums on policies effected by him, he still would receive
them on the partnership account. At the date of the bond, — March
14th, 1865, — ^there was no existing partnership. And the letter of the
7th of February, praying the defendant to take upon himself the re-
sponsibility, assures him that he will only be answerable for the in-
tegrity of bis son ; whereas, the construction now sought to be put
upon the bond by the plaintiff, is, that he was becoming answerable
for the integrity as well as the solvency of Fox also. It is said that
if John Sanderson Lloyd had been the sole agent, and he had employed
a clerk to assist him in transacting the insurance business, the bond
would bare covered receipts by such clerk. To that I assent. But

216 MONTEFIORE t;. LLOYD. M. T. 1863.

tbe authority of a partner is much more extensive than that of a
clerk or servant. Then, the powers of attorney set out in the case
are all joint and several, and are equally consistent with a receipt of
moneys by the two as with a receipt by each as a separate agent for
the company. Upon the whole, I feel constrained to come to the con-
clusion that the defendant is entitled to the judgment of the court.

Williams, J. — I am of the same opinion : though, at the same
time I think it right to say that I do not think the authorities, com-
mencing with Bellairs v. Ebsworth, and ending with The London As-
surance Company v. Bold, constrain us, — construing this bond by the
light of the surrounding circumstances, — to say that the defendant's
engagement mieht not be extended to make him answerable for
moneys received by John Sanderson Lloyd in conjunction with a
•9171 P^^'^^^* ^^^ *^® question *is, whether the surrounding circum-
-l stances here do lead to the conclusion that that was the inten-
tion of the parties. If such were their intention, I think there is
nothing in the language employed to preclude the court from giving
effect to that intention : because, though primS facie a receipt by A.
means by him alone, it may yet appear that a more extensive meaning
was in the contemplation of the parties. The question remains,
whether there is sufficient evidence in the surrounding circumstances
to lead us with reasonable certaintv to the conclusion that a more ex-
tensive meaning was contemplated. I think, — though at first I was
inclined to think otherwise, — there is no evidence of that. The letter
of the 7th of February, in which was forwarded to the defendant an
extract from the letter from Fox of the 27th of November, set out in
the first paragraph of the case, informs the defendant that ''it will be
necessary, if John Sanderson Lloyd be associated with him (Fox) in
the agencv, that a bond signed by two parties for 500/. be entered
into:" and the letter goes on to say, — "As it is only insuring his (that
is, John Sanderson Lloyd's) integrity, it is a nominal thing." That
letter clearly indicates that the son is to be associated with Fox in the
agency, and holds out to the defendant that he incurs no responsi-
bility provided his son acta with integrity in the business. I think
the reference to the intended partnership justly leads to no further
inference than this» that Fox and John Sanderson Lloyd were to be
associated together as partners in the agency, but not that the surety
for the latter was to be responsible also for the acts of Fox. I desire
not to express myself more stro&gly than is necessary for the decisioa
of this case upon the facts as stated.

Bylss, J. — ^I am of the same opinion. I was for some time strongly
*2'181 i°^P^^S9^<^^i^^^^i^^^ that our jfsdgment*oaght tabefor the
^ plaintiff: buttheargament has induced me to alter my opinion.
I rely chiefly upon the words of the bond. It is troe that a bond or
other instrument uadsr seal caainot be varied b j an instrument not under
seal. The question is^ what is the meftniiig of this boad, regard beings
had to the surrounding circnm^ances? At the time the brad was sealed^
no partnership' existi^ between Fox and John Sanderson Lloyd. The
bond is dated the 14tfa of March, 1855, and the partnership eommeneed
in June. Now, Ike sunounding eircomstanees are the oo-existiRg ctr-
cnmstanees. WhaA says tha bond? It recites that ''the abeve-boandea
John Sandenon Lloya bath been Dominated and apponU^d by the board

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 2W.

of directors of the company to be an agent of the company at Adelaide,'^
— ^referring, therefore, to a still prior time, — '*and on such his nomi-
nation it was stipulated by or on behalf of the company, and agreed
to by the -said John Sanderson Lloyd, that he, together with the
above-bounden Theodore Lloyd and Isaac Lloyd, should enter into
the above- written bond or obligation /or ^ecimn^ the fidelity of the said
John Sanderson Lloyd." Then the condition is, that, " if the said John
Sanderson Lloyd, his heirs, executors, or administrators, or some or
one of them," — and these are most important words, — "shall well and
truly pay or cause to be paid unto the directors of the company all
such moneys tw shall be by the said John Sanderson Lloyd received as
or by way of premiums on account of the company, or with which
he shall be intrusted by or on account of the company, and shall when
required render true accounts of all moneys by him received, &c., and
shall justly and honestly conduct himself in his employment of agent
to the company, the obligation was to be void." Looking at the
co-existing facts, can we reasonably put any other construction upon
this bond than that the principal debtor, the agent, was to be liable
for his own *acts and defaults only, and that the sureties were |-#2i9
to be liable for the acts and defaults of the principal, and of •-
the heirs, executors, or administrators of that principal ? Even if
we look at the letter of the 7th of February, — which I do not think
would be at all material, — all it says, is, that the proposed bond is
only for insuring the integrity of John Sanderson Lloyd. So far
from that letter leading to the inference that the sureties are to be
responsible for the acts or defaults of the firm, it seems to me that it
ought to lead to the opposite conclusion. The consequence of joining
others with the principal debtor, would be to deprive the sureties, in
case of the principal debtor's predeceasing those persons, of the
security which the law gives them ; for, I take the law of partnership
to be, that personal chattels of a partnership do not survive to the
representatives of a deceased partner, but that all choses in action an4
all contracts entered into by the firm pass to the survivors, and the
co-contractor's executors are altogether relieved therefrom. Besides
which, although Fox and John Sanderson Lloyd were partners, yet,
by the authority under which they acted, they were separate as well
as joint attorneys. What was to prevent the company from saying,
that, as between them and their attorneys, the accounts should be kept
separately, though, as between the attorneys themselves, as partners^
they might be blended ? I feel convinced that the more the matter is
considered, the more reason there will be found to be why our
judgment should be for the defendant. I do not at all rely upon what
has sometimes been said, viz. that a surety is the favourite of th6
court. And I will merely add that the three cases of Bellairs v.
Ebsworth, The London Assurance Company v. Bold, and Moon u.
The Alderbury Union, are all strongly in favour of the defendant :
and, though there is nothing in the report of the case of The London
Assurance Companj v. Bold to justifv the ^conclusion that the rMOQ
knowledge of the intended partnership was brought home to ^
the defendant, still, both the Lord Chief Justice and Mr. Justice
Wightman assume that to be the fact in their judgments.
Kbatino, J. — ^I am of the same opinion, thoughj^ like the re^t of
c. B. w. 8., VOL. XV.— 10

22a MONTEFIORE v. LLOYD. M. T. 1863.

tbe court; my mind has flactuated somewhat in the course of tbe
argument. I have, however, arriyed at the conclusion that tbe
defendant is entitled to judgment. The words of the bond, taken by
themselves, are clear enough. But Mr. Lush has relied upon the
extrinsic evidence to show that those words may admit of a con-
struction diflferent from that which primfi facie they would seem to
import. If the extrinsic evidence bad shown (as I at one time felt
inclined to think it did) that the bond could have no operation at all
unless the constniction contended for by the plaintiff were put upon
it, I should have hesitated before I decided against him. But that
difficulty has been entirely removed by the argument 6f Mr. Smith.
He has shown satisfactorily that the bond might have an operation
without going to the extent contended for on the part of the plaintiff.
It is unnecessary to repeat what has already been better saia by my
liord and my two learned Brothers : and I will only add that tbe
impression produced upon my mind from a consideration of the
•extrinsic evidence, is, that, although the defendant had a knowledge
which might reasonably have led to the inference that he did con-
template becoming responsible for the acts of the two partners, yet he
did in truth contemplate only that he was becoming responsible for
the integrity of his own son. For these reasons, I come without
hesitation to the conclusion that our judgment ought to be for tbe
defendant. Judgment for the defendant.

»oon •JANE ROBBINS, Administratrix of EDWIN JAMES
^'^■1 ROBBINS, deceased, v. JONES. Nov. 16.

If a bighway is dedicated lo the public with a dai^erous obstnioUon upon it, aoch aa woald
have been a nuiaance if placed upon an ancient way, — ^aa, a flight of ateps, of a projecting flap, —
BO action can be maintained againal tbe peraon dedicating it for an injury caused tberebj.

Nor wlU aa action lie againat the owner of a houae hairing a coTered area adjoining a pnfalie
footway, which area waa in exiateaee before and at tbe time of tbe dedication of the highway,
a^d waa dedicated to the public before the laat General Highway Act, fur an injury to an
indiridual from the giving way of the covering of the area in conaeqnence of the wear and tear
•oecaaioned by pnbJio naer.

In 1830, honaea were erected on land adjoining a new road oooatmcted at a high leFel aa sb
ii^n^roaeh to a new bridge aoroaa tba Thamea. Betwaen tbeae honaea and thta road waa a ap«»a
which waa covered over (aa a neana of acceaa to the houaea) by a flagging in which were grat-
laga to let light and air to tbe lower part of tbe bnildinga, which formed aeparate tenemeotc,
ithe entrance to which waa upon the lower level at tbe rear. The apace ao covered had bcooiMy
•Vy dedication prior to the Qonaral Highway Aet» 6 A 6 W. 4, e. 60, a part of the pobUo fo«l«ay»
.|#d waa uaed aa aipch by tha pablie» In 1862, in eonaeqaenoe of a lai^ namber of petaoM
congregating upon t^e apot, the flagging and gratii^ in f^Qt of one of tbe houaea (having
^ome weakened by uaer) gave way, and aeveral peraona were precipitated into the area below
(a depth of about thirty feet), and one of them waa killed : — Held,— in an action by tho tridow
^ the deoeaaed, under Lovd Campbaira Act» A 10 Vick e. 93,— tha^ thete being undar tlia
•h WW t ttan e e i bo legal liahUi^ on the piarl of tba laaaee of tha boHaef to keep tho avrfaoa af
Ibi* way in repair, the action waa not maintainable,— the gulph at the nAfi of the eanaeway
being the reauU of the road being raiaed by the makera of it» not by the land at the aide being
BMaiPAted by the proprietora of it : and that the artificial ebaraeter of th0 flagging and gmtlBg
did not make It mora or laat a way to bo repaired by the pariah,

r h landlofdwho lata a konm i« a daagaroaa atale, ii pot lii^e ta tba teaant'a onatoviaii «r
goaati for aooide«la bjiwaRvif i« ooaae^aeBca diiriag tbs tarmu

JThis was an aelieii bfought. by the plaioti£^ as adjaiais^ntrix of

COMMON BENCH BBPOBTS. (15 J. SCOTT. N. 8.) „ 221

her deceased husband, to recover damages upder Lord Campbell^
Act, 9 & 10 Vict. 93, for an accident resultivg in his death througk
the alleged negligent and improper conduct of the defendant, in
wrongfully permitting a certain area adjoining and under a certain
public footway, the property of the defendant, to be and continue in
a dangerous and unsafe condition.

The declaration stated that the defendant was owner and possessed
of certain houses and premises and a certain area in front of and
parcel of the same immediately ac(joining and under a certain common
and public footway, and the said area was covered and protected with
and by an iron grating, and it was then- the duty of the defendant at
all times to keep and maintain the said area and grating in good and
fluflScient repair, so that persons passing over and along the *said r^ooo
footway might not be in danger .of falling into the said area ; *- ^^
yet that the defendant wrongfully permitted the same to be and
continue, and the same were and continued, in a dilapidated, decayed,
dangerous, and unsafe state and condition, to the danger of persons
lawfully passing oyer and along the said common and public footway;
and the defendant, well knowing the premises, demised and let his
said bouses and buildings and the said area and grating in the same
state and condition to certain other persons^ to wit, Smith Allen Jeffs
and Augustus Jeffs, and wrongfully suffered and permitted the said
area and grating to be and continue, and kept and maintained, and
continued kept and maintained the same in the same state and con-
dition, until the happening of the grievance thereinafter mentioned :
And the said Edwin James Bobbins, deceased, afterwards, to wit, on
the 10th of February, 1862, was lawfully passing over and along the said
common and public footway, as he lawfullv and properly might, and
by reason o£ the said dilapidated, decayed, dangerous, and unsafe state
and condition of the said area and grating, the same fell in, and the
said Eldwin James Bobbins was thrown down into the said area,
whereby he was severely hurt and injured, and by reason of the said
injuries thereby occasioned to him as aforesaid the said Edwin James
Bobbins afterwards, and within twelve calendar months next before
the brinmng of this suit, died : and the plainti£^ as administratrix as
aforesaid, for the benefit of her the said widow and Louise Jane Bobbins
the child of the said Edwin James Bobbins, deoaased, according to
the farm of the statute in that cmq made and provided, claimed
XOOOZ.

The defendant pleaded, — first, not gailty,-^-«eQOiidly, that the sai4
area was not immediately adjoining w under a oommon and public
footway, as alleged, — ^thirdly, that the said Edwin James Bobbins wa#
not 'lawfully passing over or along the said common and r^ooe
piddic footwayi aa alleged,— fourthly, tkat feraona passing in ^ ^
and along the «aid footway were not, at the time the de&ndani wm
po gpssaed of the said hooeee and premisea and ot the said arei^ in a»w
danger of falling in^o the seid a(rea»— fifthlr, Ihttt the said area and
grating was no piMt of the eommoQ and fmUlc footway, and thftt» al
the aaid time whan» 4^^ the mi £dwia immm Sobhina milawfully
juid ot hia owa wrovg, with otbars, hreim and ntered the sail
gnting, houses; and premises, and he and otheie vera ulM^Ujp

223* ROBBINS ». JONES. M. T. 1863.

trespassing on the sal^ grating and the said houses and premises, and
crowding thereon, and by reason thereof the said grating fell in, and
the said Edwin James Rohbins was thrown down and injured as ia
the declaration mentioned. I^ue thereon.

The cause was tried before Willes, J., at the sittings at Westmin-
ster after last Michaelmas Term. The history of the cause is fully
given in the judgment of the court, — post, p. 236, — which was pre-
pared by the learned judge who presided at the trial.

On the part of the defendant, it was contended that the pavement
in question having been dedicated to th« public and used by them
prior to the passing of the General Highway Act of 6 & 6 W. 4, c. 50,
the parish was bound to keep it in repair, and no duty was by law
oast upon the defendant to do so ; and, further, that, i^suming the
spot in question to be private property, the public had np right to
congregate on it so as to render it dangerous.

The learned judge put the following questions to the jury : —

1. Was the flagging in question a nuisance causing danger to
persons lawfully using the highway, even considered as bounded by
the retaining walls of the bridge approaches ?

*2241 *^* ^^ ^* ^ nuisance causing danger to persons lawfully
J passing from the highway to the houses ?

8. Were the flagging and grating in a fit state, regard being had to
the safety of persons going to the houses ?

4. Were they in a reasonably fit state, having regard to their user
as a public footway ?

6. Were they in a reasonably fit state for persons to stand or walk
upon in any sense ?

6. Was the accident occasioned by the access of an extraordinary
crowd, or by the Improper state of the flagging and grating, or bj
both combined ?

7. Was the deceased guilty of any negligence or misconduct con-
tributory to the accident ?

8. Was the deceased, when he fell, lawfully using the place for tho
purpose of going to the house ?

9. Was the spot in question a public highway ?

The jury answered the 1st, 2d, 8d, and 8th. questions in the affirma-
tive, and the 4th and 7th in the negative. To the 6th they answered,
— " Not in the sense of a crowd always liable to be gathered together,
when used as a public highway ;" to the 6th, — *' By both ;" and to the
9th, — " Used as such by dedication."

The learned judge thereupon directed a verdict to be entered for
the plaintiff, and the jury assessed the damages at 2802^ apportioning
it as follows,— 200?. for the widow, and 80i for the child.

Luahy Q. C., in Hilary Term last, pursuant to leave reserved to him
at the trial, moved to enter a nonsuit. He also moved f6r a new trial
on the ground that the findings of the jury upon some of the questions
put to them were not warranted by the evidence.
^251 , Ebls, C. J. — As to the last ground, it seems that the ^learned
^ judge ia not dissatisfied with the answers which were given
bi7 the jury; but we think the rule may go, for the purpose of eon-
ndering their effeoL
* WiLLBS, J.— I should be inclined to say that the defendant would

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 225

be liable if the paving and flagging were not sufficient to bear a crowd
such as reasonably might be expected . to gather upon them. A way
that is to be nsed by the public should be strong enough to hold up
all persons lawfully using it. At all events, a jury might reasonably
think so.

The rule was ultimately drawn up as follows : — To enter a nonsuit
pursuant to the leave reserved, on the grounds, — first, that, on the
finding of the jury that the locus in quo was a public highway, the
liability to repair was on the parish, — secondly, that the obligation to
repair, if not on the parish, was on the lessees, — thirdly, that the
accident was occasioned by the negligence of the deceased : or for a
new trial, on the ground that the several findings of the jury were
against the weight of evidence.

Coleridge, Q. C, and Martin^ in Easter Term last, showed cause. — •
The main question is, whether the defendant by his negligence either
caused or materially contributed to the accident which resulted in
the death of the plaintiff's husband. Now, it is an undisputed fact
that the paving and grating in question were out of repair. The
defendant's attention had been called to it, a communication having
been made to his agent Lane, recommending that an arch be turned
under the flagging : and this was prior to the demise to the Messrs.
Jeffs. There are numerous cases to show that one who, having notice
of its existence, suffers a dangerous nuisance to continue, is responsible
for the *consequences. Salmon v. Bensley, R. & M. 189, and r*ooa
The King v. Pedly, 1 Ad. & E. 822 (E. 0. L. R. vol. 28), 3 N. L ^^^
k M. 627, are to that efiect. Littledale, J., in the last- mentioned case,
says : "If a nuisance be created, and a man purchase the premises with
the nuisance upon them, though there be a demise for a term at the time
of the purchase, so that the purchaser has no opportunity of removing
the nuisance, yet by purchasing the reversion he makes himself liable
for the nuisance. But if, after the reversion is purchased, the nuisance
be created by the occupier, the reversioner incurs no responsibility:
yet, in such a case, if there were only a tenancy from year to year, or
any short period, and the landlord chose to renew the tenancy after
the tenant had erected the nuisance, that would make the landlord
liable. He is not to let the land with the nuisance upon it." In
Bich V. Basterfield, 4 C. B. 783 (E. C. L. R. vol. '56), where an action
was brouffht against the owner of premises for a nuisance arising
from smoke issuing out of a chimney, to the prejudice of the plaintiff
in his occupation of the adjoining messuage, — on the ground that the
defendant, having erected the chimney, and let the premises with the
chimney so erected, had impliedly authorized the lighting of a fire
therein, — it was held that the action would not lie ; the nuisance com-
plained of, viz. the lighting of the fire, being the act of the tenant
Cresswell, J., in delivering the judgment of the court, said : "If The
King 17. Fedly is to be considered as a case in which the defendant waa
held liable because he had demised the buildings when the nuisance
existed, or because he had re-let them after the user of the buildings had
created a nuisance, or because he had undertaken the cleansing and had
not performed it, — we think the judgment right, and that it does not
militate against our present decision. But, if it is to be taken as a

227 BOBBINS v. JONES. M. T. 1863.

♦S571 *^®^58^^^ ^^** ^ landlord is responsible for the act of his tenant
J in erecting a nuisance, by the manner in which he uses the
pl^mises demised, — we think it goes beyond the principle to be found
m any previously decided cases; and we cannot assent to it." These
cases are commented upon by this court in Todd v. Flight, 9 C. B. N. S.
877 (E. C. L. R. vol. 99), where it was held that an action lies against
the owner of premises who lets them to a tenant in a ruinous and
dangerous condition, and who causes- or permits them so to remain
until by reason of the want of reparation they fall upon and injure
the house of an adjoining owner ; Erie, 0. J., observing that they are
authorities for saying, '* that, if the wrong causing the damage arises
from the non-feasance or the mis-fea.sance of the lessor, the party
suffering damage from the wrong may sue him." It is upon that
principle, it is submitted, that the defendant is liable here. Bishop
t;. Trustees of the Bedford Charity, 1 Ellis k Ellis 697 (E. C. L. R.
vol. 102), may be distinguished, on the ground that the defendants
had no notice of the insecure state of the grating. Fisher v. Prowse,
2 Best & Smith 770 (E. C. L. R. vol. 110), is also distinguishable.
The present case falls precisely within the principle of Barnes v.
Ward, 9 C. B. 892 (E. C. L. R. vol. 67). There, A., being possessed
of land abutting on a public footway, in the course of building a
house on such land, excavated an area, which, by the negligence of
his work-people, was left unfenced, so that B., who was lawfully-
passing along the way, the night being dark, without any negligence
or default of her own, fell into the area and was killed : and it was
held that A. was, liable, under the 9 & 10 Vict c. 98, to an action by
the husband, as administrator, for the benefit of himself and B.'s
infant children. Maule, J., in delivering' the judgment of the court,
afker referring to nearly all the authorities, says : "The result is, —
•2281 considering that the present case refers to a newly-made *ex-
J cavation adjoining an immemorial public way, which rendered
the way unsafe to those who used it with ordinary care, — it appears to
«ls, after much consideration, that the defendant, in having made that
excavation, was guilty of a public nuisance, even though the danger
insisted in the risk of accidentally deviating from the road ; for, the
danger thus created may reasonably deter prudent persons from using
the way, and thus the full enjoyment of it by the public is, in effect, aa
tnuch impeded as in the case of an ordinary nuisance to a highway.'*
So here is a nuisance or danger created close to and connected with a
public way ; and the deceased, through no negligence of his own, but
solely through the negligence and want of care of the defendant, fell
through and met with bis end. In Coupland v. Hardingham, 8 Oaropb.
^ 898, — which is cited with approbation in Barnes v. Ward, — the action
was case for not railing in or guarding an area before a house in West*
minster, whereby the plaintiff fell down into the area, and was severely
hurt : the defence was, that the premises had been in the same condition
as far back as could be remembered, and before the defendant became
possessed of them. But Lord Ellenborough held, that, however hmg
the premises might have been in this condition, as soon as the defend-
unt took possession of them he was bound to guard against the
danger to which the public had before been exposed; and that he was
liable for the consequences of having neglected so to do, in the same

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 228

manner as if he himself had originated the nuisance: and the learned
judge said that the area belonged to the house, and it was a duty
which the law cast upon the occupier of the house, to render it secure^
In The King v. Watts, 1 Salk. 857, 2 Ld. Raym. 856, which was an
indictment for not repairing a house standing upon the highway,
ruinous and like *to fall down, which the defendant occupied r^ooa
and ought to repair ratione tenursd suse, the defendant pleaded ^
not guilty, and the jury found a special verdict, viz. that the defend-
ant occupied, but was only tenant at will. And Lord Holt said :
" The ratione tenuras is only an idle allegation ; for, it is not only
charged, but found, that the defendant was occupier, and in that
respect he is answerable to the public ; for, the house was a nuisance
as it stood, and the continuing the house in that condition is continuing
the nuisance." In Corby v. Hill, 4 C. B. N. S. 556 (E. C. L. R. vol.
93), the owner of land having a private road for the use of persons
coming to his house, gave permission to A., who was engaged
in building on the land, to place materials upon the road. A. availed
himself of this permission, by placing a quantity of slates there, in
such a manner that the plaintiff in using the road sustained damage.
It was held that A. was liable to an action for such injury. Oockburn,
C. J., there says : " The proprietors of the soil held out an allurement
whereby the plaintiff was induced to come upon the place in question :
they held out this road to all persons having occasion to proceed to
the asylum, as the means of access thereto. Could they have justified
the placing an obstruction across the way whereby an injury was
occasioned to one using the way by their invitation? Clearly they
could not.'' And Willes, J., says : " One who comes upon another's
land by the owner's permission or invitation, has a right to expect
that the owner will not dig a pit thereon, or permit another to dig a
pit thereon, so that persons lawfully coming there may receive injury.
That is 80 obvious that it is needless to dwell upon it." That case,
which is altogether undistinguishable from the present, as well as
Hounsell v. Smyth, 7 C. B. N. S.731 (E. C. L. R. vol. 97), are referred
to in Bolch v. Smith, 7 Hurlst. & N. 736, where the Court of Ex-
chequer held, as this court *had done in Hounsell v. Smyth, r^ogA
that the defendant was under no obligation to fence against a ^
danger on his own land, unless it was so placed as to amount to a
public nuisance. It will be said that this place had become by dedi-
cation a part of the public highway, and consequently that the duty
of keeping it in repair was by law cast upon the parish. It may^
however, well be, that the public may acquire a right to go upon a
man's land, and yet the parish may not be burthened with repair.
This was a part of the defendant's premises, which for his own con-
venience he had allowed the public to use for the purpose of going to
the shop windows. That there may be a conditional or partial dedi-
cation, is clear from Lade v. Shepherd, 2 Stra. 1004, The King i;.
Lloyd, 1 Campb. 261, The Marquis of Stafford v. Coyney, 7 B. & 0.
257 (E. 0. L. R. vol. 14), Cornman v. The Eastern Counties Railway
Company, lO Exch. 771, Le Neve v. The Vestry of Mile End Old
Town, 8 Ellis & B. 1054, Morant v. Chamberlin, 6 Hurlst. & N. 541,
and Fisher v. Prowse, 2 Best & Smith 770 (E. C. L. R. vol. 110). The
user of this way by the plaintiff clearly was not an act of trespass.

230 BOBBINS i;. JONES. M. T. 1863.

[Keating, J. — That is settled by the jury.] The public, then, having
a right to go upon this spot, it was the defendant's duty to see that it
was strong enough to bear such amount of traflSc as might reasonably
be expected in a London street. [Byles, J. — The dedication here
was prior to the General Highway Act, 5 & 6 W. 4, c. 50, and there-
fore the duty to repair the surface was by law cast upon the parish ;
The King v. Leake, 2 N. & M. 595, 5 B. & Ad. 469 (E. C. L. R. vol.
27).] A highway may be a highway for a limited purpose : Roberts
v. Hunt, 15 Q. B. 17 (E. C. L. R. vol. 69), where Lord Campbell says
that a man must calculate the consequences before he dedicates. In
The King v. Pedly, 1 Ad. & E. 822 (E. C. L. R. vol. 28), 3 N. & M.
627, it was held, that, if the owner of land erect a building which is
*2*?n ^ ii^isance *or of which the occupation is likely to produce a

-' nuisance, and lets the land, he is liable to an indictment for
such nuisance being continued or created during the term: so also, if
he let a building whicb requires particular care to prevent the occu-
pation from becoming a nuisance and the nuisance occurs for want of
such care on the part of the tenant. And in Todd v. Flight, 9 C. B.
, N. S. 377 (E. C. L. R. vol. 99), it was held by this court that an action
lies against the owner of premises who lets them to a tenant in a
ruinous and dangerous condition, and who causes or permits them so
to remain until by reason of the want of reparation they fall upon and
injure the house of an adjoining owner. Brock v. Copeland, 1 Esp.
N. P. C. 203, and Coupland v. Hardingham, 3 Campb. 393, also show-
that this action is maintainable. [Byles, J. — The jury have found
that this way was dedicated to the public with the gratings in it.
Who would be bound to repair the substructure ?] The owner of the
premises undoubtedly. As to the verdict being against evidence, it
does not appear that the learned judge who tried the cause is dissatis-
fied with the result.

Lush, Q. C, and David Keane, in support of the rule. — The first
proposition is abundantly sufBcient to dispose of this case. One who
dedicates a way to the public incurs no liability and is burthened
with no duty to keep it in repair. If the public choose to use it,
they must take it cum onere. Having once made the dedication, the
owner of the soil can do nothing to derogate from his grant. Fisher
V. Prowse, 2 Best and Smith 770 (E. C. L. R, vol. 110), is precisely
in point. It was there held, that, where an erection or excavation
exists upon land, and the land on which it exists, or to which it is
contiguous, is dedicated to the public as a highway, the dedication
*2321 ^^^^ ^ taken to be made to the ^public and accepted by them

■' subject to the inconvenience or risk arising from the existing
state of things. The defendant occupied a house adjoining to a public
street, with a cellar belonging to it, which cellar had existed before
the defendant had anything in the bouse. The mouth of this cellar
opened into the footway of the street by a trap-door. During the day,
this trap-door was open, but at night it was closed by a flap, which
.slightly projected above the footway, and it had so projected as long
as living memory went back. The plaintiflF, coming along the foot-
way at night, stumbled over this flap, fell, and sustained injury, for
which he brought an action: and it was held that the jury ought to
draw the conclusion that the cellar-flap had existed as long as the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 232

street, and that the dedicatiou of the way to the public was with the
cellar-flap in it, and subject to its being continued there, and there-
fore that the defendant was not liable, as the maintenance of such an
ancient cellar-flap was not unlawful. Blackburn, J., in delivering the
judgment of the court, saya : " We think we must, on this reservation
coupled with the evidence, take it to have been proved that there was
DO negligence on the part of the plaintiff contributing to the accident,
and that the flap did cause obstruction to the footway to such an
extent that if the flap had been put down for the first time after the
highway was dedicated to the public, it would have been a nuisance
for the consequences of which those who maintained the nuisance
woald be responsible. On the other hand, we must take it to have
appeared that the flap continued in its original condition, and that the
defendant had not altered it or suffered it to get out of repair, so as
to increase the danger and obstruction beyond what always must have
existed since it was there. And we think, that, on its being shown
that the cellar-flap had ^existed in its present condition as far r^oRS
back as living memory went, the jury ought to draw the con- ^
elusion that it had existed as long as the street, and that the dedication
of the way to the public was with this cellar-flap in it, and subject to
the reservation of its being continued there, so far as by law the high-
way could be subject to it." In Cooper v. Walker, 2 Best & Smith
770 (E. C. L. R. vol. 110). in which judgment was given at the same
time as that of Fisher v. Prowse, the declaration was for negligently
and improperly placing in a public street certain steps, so that the
same were an obstruction to persons using the street, and dangerous
to persons passing along it at night ; and averring that the plaintiff,
passing along the street, fell over them and was injured. The defend-
ant pleaded that tlie street was subject to the right of the occupiers
of a house adjoining it to have steps standing in the highway and
leading up to the outer-door of the house, all persons passing along
the highway being entitled to pass on foot over the steps as a part of
the highway, which steps were part of the house ; that, the street
being lowered under the Metropolis Local Management Act, 18 & 19
Vict, c, 120, the old steps were necessarily removed, and the present
steps placed in their room ; and that the new steps were placed on the
same part of the highway on which the old steps had stood, and caused
no greater obstruction or danger than did the old steps : and it was
held that the plea was good, as the former highway was subject to
the right on the part of the occupiers of the defendant's house to keep
these steps there, and the lowered highway was subject to a similar
right. In delivering judgment, Blackburn, J., says (p. 779): *'The
bw is clear, that, if after a highway exists anything be newly made
so near to it as to be dangerous to those using the highway, — such,
for instance as an excavation, Barnes v. Ward, 9 C. B. 892 (E. f^oqa
C. L. B. vol. 67), — •this will be unlawful, and a nuisance; as *-
it also is if an ancient erection, as, a house, is suffered to become
ruinous, — The Queen v. Watts, 1 Salk. 357 : and those who make or
maintain the nuisance in either case are liable for any damage sus-
tained thereby, just as much as if the nuisance arose from an obstruc-
tion in the highway itself: but the question still remains, whether an
erection or excavation already existing, and not otherwise unlawful

234 BOBBINS v, JONES. M. T. 1863.

becomes unlawful when the land on which it exists, or to which it is
immediately contiguous, is dedicated to the public as a way, if the
erection prevents the way from being so convenient and safe as it
otherwise would be; or whether, on the contrary, the dedication
must not be taken to be made to the public, and accepted by them,
subject to the inconvenience or risk arising from the existing state of
things. We think the latter is the correct view of the law. It isi, of
} course, not obligatory on the owner of land to dedicate the use of it
as a highway to the public. It is equally clear that it is not com-

fulsory on the public to accept the use of a way when offered to them,
f the use of the soil as a way is offered by the owner to the public
under given conditions and subject to certain reservations, and the
public accept the use under such circumstances, there can be no injus-
tice in holding them to the terms on which the benefit was conferred.
On the other hand, great injustice and hardship would often arise, if,
when a public right of way has been acquired under a given state of
circumstances, the owner of the soil should be held bound to alter
that state of circumstances to his own disadvantage and loss, and to
make further concessions to the public altogether beyond the scope
of his original intention. More especially would this be the case
when public rights of way have been acquired by mere user. For
^noen instance, the owner of the bank of a *canal or sewer may,
■' without considering the effect of what he is doing, permit
passengers to pass along until the public have acq^uired a right
of way there. It is often hard upon him that the public right
should have been thus acquired; it would be doubly so, if the
consequence were, that he was bound to fill up or fence off hia
canal.'* [Willes, J. — The evidence was, not simply that the flag-
ging and grating were out of repair, as such ; but that the proper
thing to do to make the way fit for the public user, was, to turn aa
arch under it, — which nobody suggested would have been necessary
if it had been used as a private way only.] It may be that a structural
change might have become necessary in consequence of the long user of
the way by the public. But this was a burthen which the law does not
, cast upon the owner of the adjoining property : it was the duty of the
parish. In Gale on Easements, 3d edit. 424, it is said : ''As a general
rule, easements impose no personal obligation upon the owner of the
servient tenement to do anything, — the burthen of repair falls upon
the owner of the dominant tenement. * Where I grant a way ovei
my land, I shall not be bound to repair it,' said Twisden, J., in Pom-
fret V. Ricroft, 1 Saund. 322 a. 'By the common law of England,
he that hath the use of a thing ought to repair it,' said Lord Mans
field in Taylor v. Whitehead, 2 Dougl. 745. ' The grantor of a way
is not bound to repair it if it be foundrous:' 1 Wms. Saund. 322 c.
Comyns's Digest,^ Chimin (D. 6.) This is in accordance with the prin
ciples of the Civil iaW, which imposed the burthen of repair in oases
of easement upon the owner of the dominant, and not upon the owner
of the servient tenement." If the court hold the lessee of the pro-
perty responsible under such circumstances as these, it will be carry-
ing the liability of the owners of property very much further than

♦286]

has ever yet *been done. In Todd v. Flight, 9 C. B. N. S. 877
(E. C L. B. voL 99), the defendant, when he let the house.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 236

knew of its dangerous condition. So, in The King v. Pedly, 1 Ad. &
K 822, 3 N. & M. 627, the defendant let the land with the auidance
existing: it was upon this ground that that case was sustained in
Rich V. Basterfield, 4 0. B. 783, 805 (E. C. L. R. vol. 56). Here, how-
ever it is not shown that the defendant did any act amounting to negli-
gence. If there was any obligation upon anybody to* repair, it was
upon the lessees who were in possession by their tenants. .

Cur, adv, vuU.

Ebls, C. J., now delivered the judgment of the court.(a)

This was an action brought by the administratrix of one Bobbins,
to recover damages under Lord Campbell's Act, 9 & 10 Vict. c. 93,
for the intestate's death.

That death took place in consequence of the giving way of a por-
tion of the east side of the public way leading to the south end of
"Waterloo Bridge, by the default, as it is alleged, of the defendant.
The part which gave way consisted of flagging and a grating over the
area of one of the houses at the side of the road.

The material facts are as folio wa: — Waterloo Bridge was constructed
under acts of parliament passed in the 53d, 56th, and 58ili years of G.
3,(6) and was finished in 1817. It was necessarily constructed so that
the roadway should be at a level much higher than the river banks ;
and, in order to give access to the roadway of the bridge so construct-
ed, the road leading to the south end of the bridge approaches it
*upon a high causeway springing at a considerable distance, r^oft?
For some distance from the bridge persons passing along the ^
causeway were protected against the danger of falling over the side
by a parapet- wall or continuation upwards of the retaining wall of the
causeway. This wall is continued up to a row of houses of which the
defendant is the lessee, and then ceases. This row of houses stands
upon the original level of the ground, and runs parallel to the cause-
way and road leading to the bridge, — leaving a gulf or space of more
than seven feet wide between the houses and the retaining wall of the
causeway. That space belongs to the owner of the houses ; and the
bottom of it is used for areas.

The houses are divided, or capable of being divided, into two dis-
tinct dwellings, having separate outer doors. The outer door of the
lower part of each building opens into a street or court upon the lower
level. The outer door of the upper part of each house opens upon
the level of the causeway towards the road leading to the bridge ; and
the inhabitants of the upper part of the house go in and out by that
door, and get to and from the road by walking upon the structure
part of which gave way under the deceased.

That structure consisted of flag-stones resting at one end for about
four inches in and upon the walls of the houses, and at the other end
for about six inches upon the retaining 'wall of the causeway, so as to
bridge over -the areas. At intervals there were gratings fixed by
means of horns into the flags, and forming with them one continuous
footway. The gratings were not attached to the houses, but were
fixed in the oentre of the flagging, and served the double purpose of
being walked upon and of letting through light to the back part of

(a) The OMe wu argued before Erie, 0. J., Willes, J., Bjles, J., and Keating, J.
(h) 53 O. 3, 0. clxxziv., 56 O. 3, o. IxiU., and 58 Q. 3, c. xx^m.

837 ROBBINS v, JONES. M. T. 1863.

the tenements below. The part of this structure lying straight
MQcn between the doors and the *roadway was flagging, so that it
■^ was not necessary to walk upon the gratings in order to get to
the houses. There was a flagged foot-pavement between the edge of
the flagging and grating and the carriage-way, on the same level with
the flagging and grating over the areas. Between it and the flagging
and grating there was a narrow strip of gravel. The end houses of
the row had no flagging and grating ; and the space over their areas
was enclosed. The road on the causeway was a common highway, to
be repaired by the parish.

In the* course of time, before the General Highway Act of 5 & 6
W. 4, c. 50, the flagging and grating had been dedicated to the pub-
lic and used by them as part of the highway for foot-passengers ; and
it so continuea up to the time of the accident.

The fee-simple of the houses was in Lord Salisbury. The defend-
ant was tenant under him for a term of years created in 1830, and
assigned to the defendant before and vested in him at the time of the
accident. Whilst he was in possession, the flagging and grating
either became or at least were out of repair and insufficient, whether
considered as a passage to the houses or as part of a public way,
having regard to the tendency of persons to collect in crowds in or
near such ways upon the occasion of a fire or the like.

It did not appear that any substructure was out of repair, but only
that the flagging and gratings forming the surface were out of repair.
It became necessary, in order to effectually sustain the flagging and
grating as a way, in the state to which time and wear and tear had re-
duced them, to make an entirely new work, viz. to turn an arch under
them, and so to make them safe. The defendant had notice of this
from the parish in 1859, some time before the accident, whilst he was
in possession : but no repairs were done between that time and the
time of the accident.

♦2891 *The defendant afterwards underlet to two persons named
^ JefiTs, who again underlet to a person who let the rooms out to
lodgers.(a) The rent due from the lessees fell into arrear, and a dis-
tress was put in upon the lodgers, who, having paid their own rent,
barred out the bailiff, who had gone out for ren'eshment. The bailiff
proceeded to regain possession by force, and a crowd collected and
stood thick upon one of the gratings. The deceased was passing by
at the time, and, being beckoned to by one of the lodgers, he triea to
get through the crowd to the door, and in doing so stepped on to
the grating. Scarcely had he set foot upon it when the grating and
the flagging resting upon the house wall, and a portion of that
resting upon the retaining wall of the causeway, gave way, and the
deceased fell, with about thirty others, down into the area, and so met
his death.

The fall of the flagging and grating was caused by their insuffi-
ciency and by the extraordinary crowd pressing upon them at
the time.

The cause was tried at the sittings after last Michaelmas Term.
There was conflicting evidence upon the question of repairs and

(a) The lease granted to the Jeffi was surrendered to the defendant, upon their banknipteXj
en the 6th of Maroh, 1862.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 239

sufficiency: but the above must be taken to be the result of the
evidence, as established by the verdict. Under the direction of the
judge, a verdict was found for the plaintiflf, for 280/. damages, subject
to the opinion of the court as to the defendant's liability. No
question was raised upon' the pleadings ; nor could any usefully have
been raised, as the court has power to amend : and the question has
been treated as arising upon the general issue. Probably it arises
also upon the record.

A rule was obtained to enter the verdict for the defendant, or a
nonsuit, which was well argued in last 'Easter Term, before fmaq
my Brothers Willes, Byles, and Keating, and myself, when we '■
took time to consider of our judgment.

It is for the plaintiff to make out that the defendant has been guilty
of tbe breach of some duty which he owed to the deceased, and that
thereby the accident was occasioned. Whether he has done so, may
be considered under the following heads : —

1. If the passage over the area be considered as a private way to
the bouses, then the reversioner is not liable, but the occupier. A
landlord who lets a house in a dangerous state, is not liable to the
tenant's customers or guests for accidents happening during the term ;
for, fraud apart, there is ao law against letting a tumbledown house ;
and the tenant's remedy is upon his contract, if any. In this case
there was none, — not that that circumstance makes any difference in
our opinion.

2. If it be considered as a public way, then the defendant is not
answerable for the area as for a hole made at the side of the highwav,
because there was no hole made by the defendant. The gulf at the
side of the causeway was the result of its being raised by the makers
of it, not by the land at the side bein^ excavated by the proprietors
of it. The alleged hole was coeval with the highway, and a conse-
quence of the making thereof In Barnes v. Ward, 9 C. B. 392,
there was a hole made by the defendant, and it was made after the
dedication of the road.

S. As for the suggested liability to repair, upon the ground that
the construction was beneficial to the proprietor of the houses, that
benefit was only retained by, not conferred upon him. It is familiar
law, that a bridge made by a private individual for his own benefit at
an ancient ford, if useful to the public, is to be repaired by them, and
not by the builder. The liability to repair a highway has not been
made to depend *upon the quantum of benefit. If it were so, r^oAi
a man who drove a flourishing trade in the house ought to pay ^
for the benefit from passers by, but not a musician or the inventor of
the calculating-machine.

4. The flagging and grating were not, like a door, under the control
of the occupier, but fixed. They were not worked, used, or worn out
by the proprietor of the houses, otherwise than as one of the public
uses a public highway on the side of which his house stands. The
passage of light and air through the grating does not wear it out any
more than the wind wears out the surface of the road.

5. The more or less artificial character of the flagging and grating
does not make it more or less a way to be repaired by the parish.
Whether it be stone, iron^ wood, or composition, as it is a public way;

241 BOBBINS r. JONES. M. T. 1863.

the public are to keep it in repair, and not the person who dedicated it»
Hitherto, the exceptions to the liability of the parish have been known.
They are custom, prescription, tenure, and enclosure whilst it lasts.
Have we authority to add flagging and grating?

6. The case is not the same as that of an open cellar-flap, which
may be considered as a trap in its nature and essence, unless it be
kept shut. Besides, that is worn out by use for the benefit of the
occupier of the cellar to which it is the door. The present case is
nearer to that of a mine propped up, and a way dedicated upon the
surface. In such a case, will any one venture to suggest that the
owner of the mine and surface, or either of them, must renew the
props when they rot and the road threatens to sink into the mine?

7. This does not fall within the law as to keeping buildings adjoining
a highway in such a state, by repair or otherwise, as not to endanger
passers by. What was insufficient here, was part of the highway
*2421 ^*^®^^' Such law may apply to the arches of a cellar *under a

^ footway, — though this we conceive to be worthy of argument,
and open to distinctions as to the state of things at the time of the
dedication, and other circumstances. It cannot apply to the footway
itself. We may refer, by way of illustration only, to the case of one
of the squares, where the footwav at one side consists of large flags
reaching from the outer wall o^ the area to the outer wall of the
cellar. There, the upper part of the flags forms the way, and the
lower part of the same flags forms, as we are told, the ceiling of the
cellar. Who is to maintain and repair the flagged way ? We appre-
hend, the public, who walk upon it and w^ar it out; without which it
might last an indefinite time.

It is to be observed, that, in cases of liability under this head, the
building need not be repaired, but only prevented from causing injarr
by its fall ; which implies that there is a power to remove: and sucn
power does not exist m this case,

8. It has been suggested^ in addition to the grounds relied upon
in argument, that the fact of the flagging and grating conceaUng
danger, was a special cause of liability. To this we answer, — first,
that the flagging and grating did not prevent the existence of the
deep area from being known to everybody passing, and there was no
fraud, — secondly, that there would have been no danger, if the parish
had properly maintained and repaired the flagging and grating, —
thirdly, that the defendant did not erect, and, as it was a highway,
could not have removed, the structure. Moreover, concealment is
relative ; and every such danger is more or less concealed^ If a high-
way is dedicated, with a dangerous obstruction on it^ sach aa would
have been a nuisance if placed upon an ancient way, — for instance, a
flight of ateps, or a projecting flap, — no action can be maintained for
iui^Tj causea thereby, whether by day, when it can be seen, or by night,
iinj*! *when it is invisible. In such a case, il was held by the Ck>iur|

^*^^ of Queen's Beach, in Fiaher v. Prowse, 81 Law J., Q. B. 212,
2 Best & Smith 770, that the publie adopting a highway mast take it
in statu quo, and that no obligation m imposed UDon the dedioator to
remove projections or fill up holes which naay be aangerooa to pasaers
by. In that leading case, which explained and overruled several qm
91 whiah vague nutiona of liabili^ have aprang np, my Brottkir

COMMON BENCH REPORTS. (15 J. SCOTT. N. 8.) 243

Blackburn, delivering tbe judgment of the court, expounded with
clearness and force the law applicable to this supposed ground of
liability, as follows: — "But the question still remains, whether an
erection or excavation already existing, and not otherwise unlawful,
becomes unlawful when the land on which it exists or to which it is
immediately contiguous is dedicated to the public as a way, if the
erection prevents the way from being so convenient and safe as it
otherwise would be; or whether, on the contrary, the dedication must
not be taken to be made to the public, and accepted by them, subject
to the inconveniences or risk arising from the existing state of things.
We think that the latter is the correct view of the law. It is of
course not obligatory on the owner of land to dedicate the use of it
as a highway to the public. It is equally clear that it is not com-
pulsory on the public to accept the use of a way when offered to them.
If the use of the soil as a way is offered by the owner to the public
under given conditions, and subject to certain reservations, and the
public accept the use under such circumstances, there can be no injus-
tice in holding them to the terms on which the benefit was conferred.
On the other hand, great injustice and hardship would often arise, if,
when a public right of way has been acquired under a given state of
circumstances, the owner of the soil should be held bound to alter
that state of circumstances to his own disadvantage and *loss, r^oiA
and to make further concessions to the public altogether beyond '•
the scope of his original intention. More especially would this be the
case when public rights of way have been acquired by mere use. For
instance, the owner of the bank of a canal or sewer (a) may, without con-
sidering the effect of what he is doing, permit passengers to pass along
until the public have acquired a right of way there. It is often hard
upon him that the public right should have been thus acquired: it
would be doubly so if the consequence was, that he was bound to fill
up or fence off his canal.'' In this statement of the law we heartily
concur. It is in accordance with the general law as to gifts, which,
in the absence of fraud, must be taken as they are, without redress
against the donor in respect of vice apparent or secret, and all expenses
in respect of which, for repairs or otherwise, are to be borne by the
donee.

9. This conclusion is also id accordance with the law as to grants
of a right of way or other easement, whether for valuable considera-
tion or not, to the effect that the grantee and not the grantor is to
maintain and repair the subject of the easement, with a corresponding
duty to do so if bv his neglect tbe grantor may suffer damage, and a
correspanding right to enter upon the grantor's land and to do all
acts necessary for such maintenance and repair.

Tbe authorities to this effect in our own law, the Civil law, and the
Code Civil, will be found in Gale on Basements, edition by Mr. WiUes,
i24 et seq.

It thus appears to us, that, to hold this action to be maintainable,
whilsv it would for the first time impose a heavy burthen upon rever
liooers, would violate well-established principles of law.

Vk^ rule to enter a nonsuit must therefore be made absolute.

Bale absolttte.

(«) Rirerf

24& WHITE V. PHILLIPS. M. T. 1863.

•245] ♦WHITE and Others v. PHILLIPS and Others. Nov. 13.

One who erecta or keeps erected on the shore of a nayigable river between high and low-water
mark a work for the more convenient nse of his wharf adjoining, which work, either from its
original defective construction or from want of repair, presents a dangerous (hidden) obstrnction
to the navigation, is responsible for an injury thereby occasioned to a barge coming to the wharf,
without any default on the part of the persons in charge of it

The defendants were possessed of a wharf abutting on the river Thames, the soil in front of
which was for the more convenient access thereto excavated by their predecessor, who placed
there a campsbed, a structure of piles and planks to keep up the adjoining soil. This camp*
shed was originally improperly constructed, and was suffered to be out of repair. A barge of
the plaintiffs was brought to the wharf for the purpose of receiving goods by means of the wharf
crane from a schooner which was moored alongside and was discharging her cargo at the wharf,
and those in charge of her, not being aware of the existence or the qpndition of the campshod,
so moored the barge, that, on the tide receding, she came upon one of the piles, which forced a
hole in her bottom, and the barge and its contents were damaged: —

Held, that these facts disclosed a duty in the defendants to keep the campshed in repair or
give notice of the danger, and a breach of that duty for which they were responsible in da-
mages ; and that it was immaterial whether or not the plaintiffs paid for the use of the wharf
or the crane.

This was an action brought by the plaintiffs to recover compensa-
tion in damages from the defendants, the occupiers of a wharf on the
banks of the Thames, for injury done to certain slabs of marble
through the grounding of a barge in which they were contained upon
an obstruction which it was alleged the defendants had wrongfully
permitted to exist in the bed of the river adjoining their wharf.

The declaration stated that the defendants, before, up to, and after
the happening of the damage thereinafter mentioned, were in posses-
sion of and had the care and management of a certain wharf on the
banks of a certain navigable tidal river, to wit, the Thames, commonly
called and known as St. Bride's wharf, and which said wharf was
used by the defendants for the reception thereat of the barges and
goods of customers in the defendants' trade of wharfingers, and the
said navigable river was the usual and ordinary means of approach to
the said wharf for such barges and goods ; and that the aefendants,
being in the possession of and having the care and management of the
said wharf as aforesaid, wrongfully and negligently erected or caused
to be erected or kept erected in the bed of the said river, and close
*2461 ^S^^^^^ ^^^ ^^'^ ^^ ^^® ^^^ * wharf, and adjoining the said navi-
-' gable river, and driven into the ground at the outside base of
the said wall, a certain campshed or mass of piles, at such a height
and in such a manner as that the same was at the time of high tide
on the said river covered with water and concealed and out of view,
and in such a position and at such a depth that vessels and barges
coming to or lying alongside the said wharf at high tide would neces-
sarily be and were in danger (unless the persons navigating and
directing the same had notice of the said campshed or mass of piles so
lying and being there) of striking and being dashed against the same
at the fall of the tide, and thereby of beiu^ greatly injured and
damaged, — of all which premises the defendants always had due
notice, and could, might, and ought to have done their duty therein ;
yet they suffered and permitted the said campshed and mass of piles
to be and continue at the time of high tide whollv covered and con*
cealed and out of view, and in such a position and at such a depth as
aforesaid, and the same did continue wholly covered and concealed

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 246

and oat of view, and in such a position and at such a depth as afore-
said, without the defendants taking or causing to be taken any proper
care or precaution in that behalf, and without using or causing to be
used any proper means to prevent or guard against the said danger,
or whereby the said danger might be prevented or guarded against,
to vessels, ships, or barges at high tide coming to or lying alongside
the said wharf, or without putting or causing to be put or placed
near the said campshed or mass of piles any proper or sufficient
buoy or other sufficient mark or signal to give due notice or warn-
ing of the said danger : that, whilst the said campshed or mass of
piles was and continued to be so covered or concealed as aforesaid,
without any proper or sufficient buoy or other *proper or r*247
sufficient signal, or any other due and proper means being •■
used to give notice or warning of the said danger, and whilst the
said campshed or mass of piles and the said wharf and wall were in
the possession and control of the defendants, the plaintiffs were law-
fully possessed of a certain barge with certain goods of the plain-
liflfs on board thereof, which was tTien lawfully navigating the said
river, under the care, direction, and management of certain mari»
ners and servants in that behalf of the plaintiflFs; and the plaintiflFsj
by the permission and at the request of the defendants, just before
the time when, &c., for reward and payment to them the defendants,,
brought the said barge, with the said goods on board, by their said'
mariners and servants, unto and alongside the said wharf of the de-
fendants at high tide, for the purpose of loading there, as customers
of the defendants as such wharfingers, a certain carTO on the said
barge; and the said barge being then so brought and at the time of
high tide lying alongside the said wharf, and the plaintiffs and the
said mariners and servants of the plaintiflFs not having any knowledge
or sufficient means of knowledge of the said danger, ana no due or
proper care being taken by the defendants to guard against the same,
and the plaintiflts by their said mariners and servants then having
lawful occasion and being directed by the defendants for the purpose
aforesaid to place and moor, and to keep placed and moored, their
said barge at such high tide, with the said goods of the plaintiflTs on
board, immediately over the place where the said campshed or mass
of piles so lay covered and concealed as aforesaid, the plaintiffs by
their said mariners and servants did then at such high tide place and
raoor their said barge imrpediately over the said place, and kept it so
placed and moored, and thereby afterwards and by means of the pre-
mises, *and of the said misconduct, omission, and neglect of r«24g
the defendants, and without any negkct or default of the plain- ^
tiffs or their said mariners and servants, the said barge, whilst the
said campshed or mass of piles and the said wharf and walls were
respectively in the possession and control of the defendants, at and by
reason of the fall of the tide struck with great force and violence
U{K>n and against the said campshed or mass of piles, whereby the
said barge heeled over and was swamped and stove in, and the said
goods of the plaintiffs greatly injured; and the plainfiflb incurred
great expense in clearing the water from the said barge, and in sur^*
rejing and repairing the damage done to the same, and m recovering
and repairing the said goods of the plaintiffs; and the plaiotiffi k>sli

0. B. H. 8., VOL, XV.— 11

248 WHITE t;. PHILLIPS. M. T. 1863.

the use of the said barge for a long time, and the freight and profits
which they might have derived therefrom. Claim, 800t

The defendants pleaded, — first, not guilty, — secondly, a denial that
they erected the campshed or kept it erected,— thirdly, that they had
not notice, as alleged, — fourthly, that the plaintiffs did not bring their
said barge to the wharf at high tide for the purpose alleged, — fifthly,
that the plaintiffs had due and timely notice of the canipshed, and of
the danger arising therefrom, — sixthly, that the plaintiffs had not
lawful occasion and were not directed by the defendants to moor the
barge as alleged. Issue thereon.

The cause was tried before Erie, C. J., at the sittings at Westminster
after last Trinity Term. The facts which appeared in evidence were
as follows : — The defendants were wharfingers, and had occupied St.
Bride's wharf for about two years. The former occupier, one Innes,
had, several years ago, excavated the soil of the river in front of the
wharf for the purpose of allowing vessels to come up to it to load and
♦94Q1 *"'^'o*^) placing at the extremity of the wharf wall between
^ high and low water mark a campshed, consisting of piles driven
into the bed of the river and planking attached thereto with bolts,
for the purpose of keeping up the soil in front of the adjoining wharf.
This campshed (which was covered at high water, but exposed at low
water), instead of sloping off* to nothing towards low-water mark,
terminated abruptly at a point nearer to the wharf, and had become
out of repair before the defendants* occupation of the wharf com-
menced, part of the planking having worn away or been broken off,
leaving the piles projecting so as to present a dangerous obstacle to
any vessel which might settle upon them. The defendants' attention
had been drawn to the condition of this campshed by the occupier of
the adjoining wharf, and they had inquired what would be the cost
of putting it into a proper state: but, finding that it would require
an outlay of 80^., they declined to do it, alleging that the wharf had
already cost them so much money. They, however, did some slight
repair to the structure; but the first barge that came to the wharf
knocked it away. The engineer of the Thames conservators, who had
examined the spot since the accident, stated that the campshed was
improperly constructed, and in a dangerous condition, and that, if his
attention had been drawn to it, he would have called upon the defend-
ants to repair it.

The plaintiffs had brought their barge to the wharf for the purpose
of receiving certain slabs of marble from a schooner which was lying
alongside. Coming there at high water, the lighterman in charge of
the barge did not see the piles, and, as he stated, was not aware of the
existence of the campshed, nor did he receive any caution on the
subject. The marble was raised from the hold of the schooner by
*2501 ^^^^ ^^ ^^^ wharf crane : but the evidence was 'conflicting
-I as to whether or not it was ever landed on the wharf: and
there was no evidence that anything was paid by tlie -plaintiffs for the
use of the crane. As the tide ebbed, the barge, with the marble on
board, settled down upon one of the piles of the campshed, and before
those on board could get her ofi^, a hole was thereby made in her bot-
tom, and the slabs of marble were in consequence tilted over and
damaged.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 250

Witnesses were called on tbe part of the defendants to prove that
the plaintiff' lighterman bad been duly cautioned, and tbat the acci-
dent was entirely the result of his negligence : and it was contended
on their behalf, that the wharf was not being used by the plaintiff as
B wbarf, the permission to use the crane for the purpose of hoisting
the roarUe from the schooner to the barge being the gratuitous act or
the foreman of the wharf; and that no duty was, under the circum-
stances, by law oast upon the defendants as occupiers of the wharf to
repair the campshed erected by their predecessors in the bed of the
river.

The case was presented to the jury in a manner which was not com-
plained of, and they returned a veraiot for the plaintiffs. Leave was
reserved to the defendants to move to enter the verdict for them, if the
court should be of opinion that the facts alleged in the declaration and

f)roved at the trial did not disclose the breach on their part of any
egal daty.

Montagu Chambers, Q. C, on a former day in this term, obtained a
rule nisi accordingly.

Parry, Serjt., and Oarth, now showed cause. — The gravamen is,
that the defendants kept in a navigable river an obstruction which
amounted to a public nuisance, and that the plaintiffs, lawfully using
the river, suffered damage in consequence. The case falls r«25r
♦precisely within the principle of White v. Crisp, 10 Exch. 812, ^
where it was held, that, where a vessel is sunk by unavoidable acci-
dent in a public navigable river, whether in the usual track of navi-
gation or not, it is the duty of the owner, so long as he continues to
have the possession and control of the vessel, to take due precaution
to prevent injury to other vessels by their striking againstit. Alder-
son, B., in delivering the judgment of the court, there says, — ''The
subject was discussed by Mr. Justice Maule in an elaborate judgment
in the case of Brown v. Mallett, 5 C. B. 599 (E. C. L. R. vol. 57), and
from the principles there laid down by him (which, however, were
not absolutely necessary for the decision of the individual case), we
do not disagree at all. He there lays it down thus, — that it is the
duty of a person using a navigable river with a vessel of which he is
possessed and has the control and management, to use reasonable
skill and care to prevent mischief to others: and he adds that his lia-
bility is the same whether his vessel is in motion or stationary, float-
ing or aground, under water or above it : for, in all these circum-
stances, the vessel may continue to be in his possession and under his
management and control." Here, the defendants, being occupiers of
the wharf with the campshed, and having notice that it was in a ruinous
state and dangerous to vessels coming to the wharf, they were clearly
guilty of a breach of duty in continuing it in that condition.

Montagu Chambers, Q. C., and J. Brown, in support of the rule. —
The material allegations in the declaration, it is submitted, were not
proved : there was no evidence of any breach by the defendants of
any doty cast upon them by the law. The campshed bein£ in the
bed of the river between high and low-water mark, and vested by
statute in the Thames ^conservators, any person touching it r«252
without their consent would be guilty of an illegal act. It '-
nay be that the parties who let the wharf to the defendants with this

252 WHITE V. PHILLIPS. M. T. 1863.

ruinous appendage might be liable, according to the decision of this
court in Todd v. Flight, 9 0. B. N. S. 377 (E. 0. L. R. vol. 99) ; but
there was no evidence here that the defendants ever used the camp-
shed. In Brownlow v. The Metropolitan Board of Works, 13 C. B,
N. S. 768 (E. C. L. R. vol. 106). the metropolitan board of works
having, with the consent of the Thames conservators under the 21 &
22 Vict. c. 104, 8. 28, but without the consent of the Admiralty (under
8. 27), driven piles into the bed of the Thames, and so left them as to
obstruct the navigation, — it was held that they were liable to an action
at the suit of the owner of a vessel which had sustained damage by
grounding on such piles, without any negligence on the part of those
in charge of her. If a vessel be sunk in the bed of a navigable river,
or a mooring-anchor lawfully placed there shifts its position, the owner
of the sunken vessel or of the mooring-anchor has been held not to
be liable for damage done to a vessel striking thereon, no duty being
cast upon him by law to place a buoy or to take any other precaution
to warn persons navigating the river of the hidden danger : Brown
V. Mallett, 5 0. .B 599 (E. C. L. R. vol. 57) ; Hancock v. The York.
Newcastle and Berwick Railway Company, 10 0. B. 348 (E. C. L, R.
70). Chapman v. Rothwell, B. B. & E. 168 (E. C. L. R. vol. 96), is
distinguishable on the ground put by Erie, J., viz., that there the
party injured came by the invitation of the defendant to the place
where the dangerous trap-door was. Here, the defendants were guilty
of no wrong; and the plaintifl& were not coming to the wharf as cus-
tomers, but merely to take the marble from on board the schooner ;
and therefore the defendants incurred no greater responsibility than
the defendant in Southcote v. Stanley, 1 Hurlst. & N. 247, did to the
♦2531 *P^^^^*^^» ^ visitor, who sustained injury by running against a
J glass-door of the existence of which he had no notice.
BRiiE, p. J. — I am of opinion that this rule should be discharged.
The first and main question is, whether the evidence given at the trial
showed a breach of duty on the part of the defendants. The substan-
tial facts were these, — The defendants were the occupiers of a wharf
on the banks of a navigable river, which had been excavated by their
predecessor for the more convenient enjoyment of the wharf, the soil
of the river in front of the adjoining wharf being supported by a
oampshed which, if it had been properly constructed and properly-
kept in repair, would have caused no damage to any one. The camp-
shed not having been properly constructed, — inasmuch as it termi-
nated abruDtly, instead of sloping down gradually towards low- water
mark, — and being suffered, whilst the wharf was in the defendants*
ocoupation, to be out of repair, the plaintiffs' barge, being lawfully
at the wharf for the purpose of taking on board certain marble slabs,
settled down, as the tide receded, upon one of the piles which com-
posed the campshed, and the barge and her cargo sustained damage.
It sufficiently appears, I think, that a duty was by law cast upon the
defendants, as occupiers of the wharf, either to keep the campshed
in repair or to give notice to persons coming to the wharf of the hid-
den danger. It is true, the oampshed was constructed by Inues, the
pedeoesaox'of the defendants, and not by the defendants themselves:
but the- defendaiite^ when they auoeeeded Innes in the occupatiou of
ike whtat, taooeeded also te the benefit of the campshed. That tbej

COMMON JiENCH REPORTS. (15 J. SCOTT. N. S.) 263

bad control over it, was clear. And, when its condition was pointed
out to them by the occupier of the adjoining wharf, and they r^ocj
*were requested to repair it, they objected to do so on account '-
of the expense : and they afterwards made an abortive attempt par-
tially to repair it, and ultimately, after the accident, made it safe. AH
this showed that it was a thing which they might have repaired with-
out incurring any danger of being treated as trespassers by the Thames
conservators : and I am of opinion that the facts abundantly showed
that the defendants were guilty of a breach of a private duty in not
doing the repairs before. I also think the verdict may be sustained
upon the second ground urged on the part of the plaintiffs. In a
navigable river, in a spot which is accessible to all persons at high
tide, a structure is placed making the navigation dangerous to those
who use it. It may be that there is some prescriptive custom by
which campsheds between high and low- water mark may be law-
ful : bat such a privilege, if it exists, can only extend to such struc-
tures as are properly constructed and repaired, and guarded by proper
precautions to prevent accidents to the subjects of the Queen lawfully
using the highway. In either view, therefore, it was the plaintiffs'
duty to keep the campshed in a proper condition, and to give due no-
tice if it were out of repair. It has been said that the plaintiffs' barge
was there without profit to the defendants, and therefore that the
plaintiffs would have no greater claim against them than the visitor
who met with an accident at the house of a friend through running
against a glass door was held, in Southcote v, Stanly, to have against
his host. I do not think that point was made at the trial : and, if
need bad been, I was prepared to dispose of it. The schooner was
at the wharf in the ordinary way of business; and the master of the
schooner, as a customer of the wharf, got permission to use the wharf
crane for the purpose of lifting the slabs from the schooner to the
barge. That 'was a use of the wharf in the ordinary way ; r*oK5
and whether cranage was to be paid by the master of the ^
schooner, or by the plaintiffs, or by nobody, to my mind makes no
difference. The point certainly was not discussed at all at the trial :
and, if it had been insisted upon, no doubt more evidence might have
been given upon the subject. Upon the whole, I am of opinion that
the liability of the defendants for the damage complained of was fully
made out.

Williams, J. — I also am of opinion that the plaintiffs are entitled
to succeed. The real question before us appears to me to be, whether
sufficient of the allegations in the declaration were proved to consti-
tute a cause of action. In strictness, according to the doctrine laid
down by this court in Brown v. Mallett, 5 0. B. 699 (E. C. L. R. vol.
57X the declaration would have been in the same plight if the allega-
tion that it was the duty of the defendants to do that which it is said
they failed to do had been altogether omitted, — the allegation of duty
being mere surplusage. The question then is, whether the allegations
in this declaration which state the damage complained of to have
occurred through conduct of the defendants for which they are re-
sponsible, are proved. It seems to me that enough was proved to
constitute a cause of action. I would rather not ground my decision
upon the second point put by my Lord, — not that I entertain any

255 WHITE ». PHILLIPS. M. T. 1863.

doubt as to the correctness of what he has laid down. I do not take
upon myself to decide that this campshed, though out of repair, was
a public nuisance. It is unnecessarj to go into that ; there being
enough on the first ground to show that the defendants here are liable.
Was the campshed kept and continued in the bed of the river by the
defendants ? It has been contended by Mr. Chambers that it was not,
*9fifil ^^ ^^^ having been originally ♦placed there by them, and the
-I defendants having no right to meddle with it, but being liable
to be treated by the Thames conservators as trespassers if they in any
way interfered with it. The facts, however, show that the campshed
was conducive to the more convenient occupation of the wharf, and
that the defendants had taken the benefit of it, and had so conducted
themselves with regard to it as to show that they considered it as part
of the machinery essential to the carrying on of the business of the
wharf. That being so, the evidence shows that the damage to the
plaintiff' barge was caused by its bottom coming upon the sunken
pile on the receding of the tide, without any negligence on the part
of those in charge of her, when moored for a lawful purpose alongside
the defendants' wharf. The question is, whether the defendants were
not bound to repair the campshed, or to give notice to persons using
the wharf as a wharf, so as to enable them to avoid the danger. It
deems to me that they were, and that for the neglect of that duty they
are responsible in damages. I think all the material allegations in the
declaration were proved, and that the plaintiffs are entitled to retain
the verdict.

Bylks, J. — I am of the same opinion upon both grounds. There
are, no doubt, many structures of this kind on both shores of the
river Thames which are not nuisances. But, upon the evidence given
upon the trial of this case, there can be no doubt that the campshed in
question was originally constructed improperly and was sufifered to
become and to continue out of repair and dangerous to persons navi-
gating the river, and that the plaintiffs gave no notice of the danger.
The evidence was strong to show that it was a public nuisance. The
schooner was at the wharf unloading, and the barge was there for the
♦2571 P^^P*^^® ^^ *receiving the marble from the schooner by means
-' of the crane belonging to the wharf. I therefore think the
barge was there at the request and for the profit of the defendants.
On both grounds, therefore, I think the plaintifi& are entitled to the
verdict.

Keating, J. — I am entirely of the same opinion. Agreeing with
Mr. Chambers, as I do, that all the material allegations in the declara-
tion are put in issue, I think there was abundant evidence to warrant
the jury in finding for the plaintiffs. Rule discharged.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 257

FELKIN, Appellant; BERRIDGE and Another, Respondents.

Nov. 11.

The t2d Metion of the Pablio Health Act, 1848 (11 A 13 Viot e. 63), reqaired certain notioei
to he given to the local board of health before the laying oot, making, or building upon any
new street This provision is repealed by the Local Government Aot^ 1858 (21 A 22 Vict e.
98), except (s. 9) as to "proceedings, matters, and things respectively begun or made" under
any section of the former act : —

SembU, that, where the proper notices had been given and plans lodged under the Pnblio
Health Act, this was a " matter or thing begun or made," within s. 9 of the Local Qovernment
Act, although little or nothing appeared to have been done towards the formation of the streets
of which notice had been 'given.

This was a case stated for the opinion of the court, under the 20 k
21 Vict. c. 43.

At a petty sessions holden at Sittingbourne on the 2d of June,
1862, Richard Berridge and Henry Bateman Jenkins, hereinafter
called the respondents, appeared to answer a complaint laid against
them by Edward Felkin, the clerk to the Sheerness local board of
health, hereinafter called the appellant, which charged that the said
Richard Berridge and Henry Bateman Jenkins, the owners of certain
land within *the district of Sheerness, lying between Berridge r#oKQ
Koad or Green Street, Marina Town, and Marine Terrace, *■
Ward's Town, near Sheerness, did on the 12th of March last offend
against a certain by-law (No. 28) duly made in that behalf by the
local board of health pursuant to s. 84 of the local Government Act,
1858, (21 & 22 Vict. c. 98), confirmed, printed, and hung up as required
by the same act, and then and still in force, that is to say, — For that
the said Richard Berridge and Henry Bateman Jenkins did lay out a
new street within the said district, to wit, from and out of a certain
road leading from Banks Town to Oheyney Eock, to a certain chapel
of and belonging to a society called The Bible Christians' Associa-
tion at Marine Town, in the said district, and did not nor did either
of them give one month's notice to the local board of such intention,
by writing delivered to the local surveyor, or lefk at his office, as re-
quired by the said by-law, in contravention thereof; and that the
said Richard Berridge and Henry Bateman Jenkins did not, nor did
either of them, leave or cause to be left at the office of the said sur-
veyor a plan or section of such intended new street, as required by
the said by-law, in contravention thereof.

By section 72 of the Public Health Act, 1848 (11 & 12 Vict. c. 63),
it is enacted ''that one month at the least before any street is newly
laid out as aforesaid, written notice shall be given to the local board
of health, showing the intended level and width thereof: and the level
and width of every such street shall be fixed by the said local board ;
and it shall not be lawful to lay out, make, or build upon any such
street otherwise than in accordance with the level and width so fixed,
unless, upon disapproval by the said local board of the level and
width specified in such notice, the general board of health shall other-
wise ♦direct; and whosoever shall lay out, make, or build upon r*259
any such street otherwise than in accordance with the level *■
and width fixed by the said local board, or approved by the said gen-
eral board, shall be liable for every such offignce to a penalty not ex-
ceeding 20/. for every day during which he shall permit or suffer such

259 FELKIN, App., BERRIDGE, Resp. M. T. 1863.

street to continue to be so improperly laid out, made, or built upon :
and the said local board may, if they shall think fit, cause any such
street laid out or made at a level or width otherwise than in accord-
ance with the level and width so fixed or approved as aforesaid, or any
building built in any such street otherwise than in accordance with
such level and width, to be altered in such manner as the case may
require; and the expenses incurred by them in so doing shall be re-
paid to them by the offender, and be recoverable from him in a sum-
mary manner: Provided always, that, if no such level or width be
fixed, and no approval or disapproval of the level or width proposed
be signified by the said local board within one month from the last-
mentioned notice, the intended street may be laid out and made upon
the level and of the width specified in such notice, if the same be
otherwise in accordance with the other provisions of this act."

The Local Government Act, 1858 (21 & 22 Vict. c. 98), took effect
in the district of Sheerness local board of health from the 1st of
September, 1858.

By section 34 of this act it is enacted that the 53d and 72d sections
of the Public Health Act, 1848, shall be repealed ; and in lieu thereof
be it enacted as follows : —

"Every local board may make by-laws with respect to the foU
lowing matters, that is to say, — 1. With respect to the level, width,
and construction of new streets, and the provisions for the sewerage
thereof, — 2. With respect to the structure of walls, &o., — 3. With

♦2601 *^®^P®^^ *^ ^^® sufficiency of space about buildings, Ac.,-

^ With respect to the drainage, &c. : and they may further pro-
vide for the observance of the same by enacting therein such provi-
sions as they think necessary as to the giving of notices, as to the
deposit of plans and sections by persons intending to lay out streets
or to construct buildings, as to inspection by the local board, and as
to the power of the local board to remove, alter, or pull down any
work begun or done in contravention of such by-laws." (a)

A copy of the by-laws of the Sheerness local board of health, made
on the 25th of October, 1860, in pursuance of this section, accompa-
nied, and, so far as was material, was to be taken as part of the case.

By-law No. 28 is as follows: — "Every person who shall intend to
make or lay out any new street, whether the same shall be intended to
be used as a public way or not, shall give one month^s notice to the
local board of such intention, by writing delivered to the local sur-
veyor, or left at his office, and shall at the same time leave or cause
to be left at the said office a plan and section of such intended new
street, drawn to a scale of not less than one inch to every 44 feet ; and
every such plan shall show thereon the names of the owners of the
land through or over which such street shall be intended to pass, the
level, width, direction, the proposed mode of construction, the pro-
posed name of such intended new street, and its position relatively to
the streets nearest thereto, the size and number of the intended building
lots, and the proposed sites, height, class, and nature of the buildings to
be erected therein, and the proposed height of the division and fence-
valla thereon ; and shall contain the name and address of the person

(a) See Cooper v. The Wandsworth Board of Works, U C. B. N. S. 180 (B. CUR. voL 108).

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 260

inteDding to lay out such new *8treet, and be signed by him r»o/ji
or bis duly authorized agent. Every such section shall show '•
thereon the level of the present surface of the ground above some
known fixed datum, the level and rate or rates of inclination of the
streets with which it will be connected, and the level of the lowest
floors of the intended new. buildings."

Section 9 of the Local Government Act, 1858, enacts that "all pro-
ceedings, contracts, matters, and things respectively begun or made
under any section of the Public Health Act, 1848, repealed by this
act, may respectively be proceeded with and enforced as if no such
repeal had taken place; and all powers exercised or by-laws made
under any section shall continue in force until the new powers and
by-laws authorized by this act are brought into operation ; and no
such repeal shall affect any decree or order of the High Court of
Chancery, or of any other court of justice that has been obtained
previously to the passing of this act."

It was admitted by the appellant that the respondents had given
notices to the local board, and deposited plans of a new street intended
to be laid out by them, pursuant to section 72 of the Public Health
Act, 1848, some time before the Local Government Act, 1858, came
into operation.

The respondents' attornev thereupon objected that the complaint
laid by the appellant alleged no offence, inasmuch as the fact of notices
and plans having been given, deposited, and accepted in compliance
with '8. 72 of the Publiq Health Act, 1848, was not negatived. He
contended that the notices given by the respondents to and accepted
by the local board prior to the Local Government Act, 1858, was a
proceeding, matter, and thing begun or made, within the meaning of
section 9 of the Local Government Act, 1858, and might still be
carried into execution.

•No attorney appeared on behalf of the appellant, to argue r#ogo
the question. '-

The justices, considering that the admission by the appellant that
notices had been given and plans deposited and accepted by the local
board previous to the operation of the Local Government Act, 1858,
was in fact an answer to the case, held the objection to be good, and
dismissed the complaint.

The question for the opinion of the court was, — Whether the jus-
tices' decision in dismissing the said complaint on the ground afore-
said was or was not right in point of law.

If their decision was right, their order dismissing the said complaint
was to stand good; if not, the court were to remit the matter to the
justices, in order that they might proceed further therein.

Archibald (with whom was Lvsh, Q. C), for the appellant. — The
case is very imperfectly stated : it does not show when the notice was
given by the respondents under the 72d section of the Public Health
Act, 1848. Nothing was intended to be saved by the 9th section of
the 21 & 22 Vict. c. 98, but what had already been begun ; whereas,
in truth, the notices and plan mentioned in the case were deposited
seven years ago ; and the street in question was one of a great num-
ber marked out on the plan, only a very small portion of which had
been subsequently laid out.

263 rELKIN, App., BERRIDGE, Resp. M. T. 1863.

WiJhugkbyf ior Ihe respondents. — The simplo question m, wfactfaer
that which the respondents have done was " a matter or thing begun
or made under the Public Health Act, 1848, within the meaning of
the 9th section of the Local Government Act, 1858." The 72d section
of the former act defines all that the parties intending to lay out any
♦2631 °®^ street were to do; *and all those requirements were in
^ this case duly complied with. It is plain, it is submitted, from
the language of the 9th section of the later act that the legislature
never intended to interfere with such a case. [Byles, J. — Would not
the respondents have been justified in proceeding upon their notice in
the time of the old commissioners?] No doubt they would. The
proceeding is in effect an attempt to make the new board, under the
21 & 22 Vict. c. 98, a court of appeal from the old board. The 28th
by-law of the Sheerness local board, set out in the case, is in terms
prospective only.

Archibald was heard in reply,

Erle, C. J. — It is enough for us, in order to dispose of this case, to
say that nothing is brought before us to show that the decision which
the magistrates have come to is wrong in point of law. I am anxious
to limit myself to answering the question propounded to us, so that, in
case the facts will enable the parties to raise the point intended to be
raised in a more formal manner, nothing that passes on this occasion
may operate unduly to their prejudice.

The rest of the court concurring,

Judgment for the respondents.

*264] *SAVAGE, Appellant; BROOK, Respondent. Nov. 11.

The 62d section of the Barnsley ImproTemeiit Act, 3 G. 4, c. »▼., imposed a penalty for,
amongst other things, exposing for sale in any of the streets, Ao., of the town any meat, ^c,
•0 as to project over or upon any foot or carriageway, Ac. The 63d section provided that no
person should he subject to any penalty under the act for placing any stall or exposing prori-
sions, Ac, for sale, so as such stalls, Ac, be placed in such part of the streets, Ac, as should b«
appointed by the commissioners. And the 64th section provided that no person should be anb-
jeot to any penalty under the act for placing any stall or exposing prorisions, Ac, for sale in
such parts of the streets, Ac, as should have been theretofore ysed for that purpose at the times
of the usual fairs and markets within the town, Ac

In the year 1853, a local board of health was constituted in Bamsley under the Public Health
Act, 1853 (16 A 17 Vict o. 24), who, by certain by-laws duly allowed and published, appointed
certain places for markets for certain descriptions of goods on market-days, and imposed penal>
ties for the breach thereof :—

Held, that the provisions of the local act did not exempt from such penalties one who tio-
lated these by-laws by exposing for sale meat, Ac, at a place other than that so appointed by
the local board of health, — notwithstanding the spot where such meat, Ac, was so exposed for
sale was a place where such articles had for a long series of years been sold by him and others*

On the 8th of June, 1863, George Savage, of Barnsley, in the west
riding of Yorkshire, the duly-appointed inspector of markets and fairs,
laid an information before a justice of the peace against one Francis
Brook, residing at Wakefield, in the said riding, which alleged that
"Francis Brook, John Sidebottom, and John Austwick, all of Wake-
field, in the said west riding, butchers, on Saturday, the 6th of June
instant, at Barnsley, in the said west riding, after the market-place
within the said district was opened for public use, did place and

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 264

expose for sale certain articles, to wit, butchers' meat, on the May-Day
Green, in Barnsley aforesaid, the same not being the place appro-
priated for the sale of batchers' meat, contrary to the directions of the
inspector of the markets, and contrary to the statute and the by-laws
of the local board in such case made and provided."

The information and complaint came on for hearing before the
justices at a petty session held at Barnsley on the 10th of June last,
and by adjournment on the 21st of October, 1863, when the justices
dismissed the same ; and, the appellant being dissatisfied with their
decision, the following case was stated for the opinion of thi<> court
pursuant to the 20 & 21 Vict. c. 43 :—

*A local act, 3 G. 4, c. xxv., intituled '* An Act for lighting, r^oft*
paving, cleansing, watching, and improving the town of Barns- ^
ley, in the west riding of the county of York," was passed in 1822.

By the 62d section a variety of annoyances and nuisances in the
streets, lanes, roads, highways, passages, or other public places in the
said town were prohibited. The same section provided *' that, if any
person or persons shall in any of the present or future streets, lanes,
roads, highways, passages, or other public places in the said town,
expose for sale or sell any horse, ass, pig, sheep, bull, cow, or other
beast or cattle (except in any public market or fair), or hang up,
place, or expose to sale the carcase of any calf, sheep, swine, cattle, or
beast or any part or parts thereof, or any goods, wares, or merchandise
whatsoever, or any fruit, vegetables, or garden stuff, or other matter
or thing, in or upon or so as to project over or upon any footway or
carriage-way, or beyond the line of or on the outside of the window
or windows of the house or shop at which the same shall be so hung
up or placed or exposed to sale, or so as to obstruct or incommode
the passage of any person or carriage," — any person so oiBEending was
renaered subject to a penalty not exceeding 5/.

Section 63 of the same act, which is not repealed, is as follows : —
"Provided always and be it further enacted, that no person shall be
subject to any penalty by virtue of this act for placing or setting any
stalls or standings, or any wagons, carts, or other carriages, in which
any provisions, goods, wares, merchandises, articles, or things shall
have been brought and be offered for sale, or exposing to sale any
such provisions, articles, or things, so as that such w.agons, carts, or
other carriages, stalls, or standings, articles, or things be placed in
such part of the said streets, ^lanes, roads, passages, or public r«oAft
places as shall be appointed for that purpose by the said com- ^
missioners, with the consent of the owner or owners of the fairs and
markets held at, within, or for the said town of Barnsley for the time
being, or his or their authorized agent, in writing; due care being
taken in all the aforesaid cases to impede or obstruct as little as pos-
sible the public streets, lanes, roads, highways, passages, and places
within the said town."

Section 64, which is also unrepealed, is as follows: — "Provided
also, and be it further enacted, that no person shall be subject to any
penalty by virtue of this act for placing or setting any stalls or stand-
mgSy or exposing to sale any provisions, goods, wares, merchandises,
or other articles or things whatsoever in such parts of the several
streets, lanes, passages, and public places within the said town as

266 SAVAGE, App., BROOK, Rksp. M. T. 1868.

shall have been heretofore used for that purpose, at the times of the
usual fairs and markets within the said town ; due care being taken
to impede as little as possible the public passage along the same."

Section 74, which is also unrepealed, enacts, — " that the said com-
missioners shall or may, and tbej are hereby authorized and em-
powered, at any time or times, by and with the consent of a majority
of the inhabitants of the said town of Barnsley rated to the rates and
assessments for carrying this act into execution, assembled in vestry
in pursuance of a notice setting forth the purport and intent of such
meeting, and published in the several churches in the said town at
least ten days before the day of meeting, to contract and agree with
the owner or owners of, and any trustees, parties, or persons interested
in any other messuages, buildings, lands, grounds, tenements, pick-
ages, stallages, market and fair rents, tolls, dues, duties, free customs,
♦2671 P'*^^^^' advantages, and rights *belonging, due, or in anywise
-" appertaining to the owner or owners of the fairs and markets
within the said town of Barnsley for the time being, or hereditaments
whatsoever, situate within the said town, for the absolute purchase
thereof, or of any part or parts thereof, which the said commissioners
shall think proper and necessary to be purchased for the purposes of
this act, at or for such price as shall be mutually agreed upon for the
same."

And section 142, which is also unrepealed, provides and enacts, —
*^ that nothing in this act contained shall (except so far as authority is
expressly given by this act) extend, or be construed or deemed or
taken to extend, to affect, extinguish, defeat, abridge, impeach, annul,
prejudice, or destroy the right, title, or interest of the most noble
George William Frederick, Duke of Leeds, lord* of the manor of
Barnsley, or the lord of the manor of Barnsley for the time being, of,
in, or to the seignories, rights, royalties, charters, franchises, jurisdic-
tions, rents, services, liberties, privileges, powers, and authorities
appendant, appurtenant, incident, or belonging to the said manor of
Barnsley, or to any rents, tolls, pickage, stallage, free customs, dues,
duties, profits, or advantages belonging, due, or in anywise appertain-
ing to the said Duke of Leeds, owner of the fairs and markets within
the said town of Barnsley, or the owner or owners of such fairs and
markets for the .time bein^ ; but that the said Duke of Leeds, lord of
the said manor, and the lord of the said manor for the time being,
shall (except as in this act expressly excepted) have, hold, use, ex:er-
else, take, and enjoy all and every the seignories, rights, royalties,
charters, franchises, pre-eminences, jurisdictions, rents, services, pow-
ers, authorities, liberties, privileges, advantages, and emoluments
whatsoever to the said manor belonging or incident, appendant^
*2681 ^I?P^r^°^°*» ^^ usually *exercised, holden, or enjoyed there-
-I with : and the said DuKe of Leeds, owner of the said fairs and
markets, and the owner and owners of the said fairs and markets for
the time being, shall and may demand, exact, take, and enjoy all
such rents, tolls, pickage, stallage, free customs, dues, duties, profits, and
advantages, with all powers and remedies for enforcing payment
thereof, in such and the like manner and as fully and beneficially to
all intents and purposes as if this act had not been passed."

The Duke of Leeds was at the time of the passing of this act the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 268

lord of the manor of Barnaley, and the owner of the markets and
fairs in the town of Barnsley which had been customarily held in
parts within that town, with the pickages, stallages, market rents, and
tolls thereof, and of three pieces of land, one called the Church Field
or Michaelmas-Fair Field, in which the Barnsley October fair had
usually been held, — the Market Hill^ — and the May-Day Green,
where fairs had always been held in February and May.

By an ancient charter, dated 1249, the right to hold a market in
the town of Barnsley every week, on Wednesday, was granted to the
priors and convent of Pontefract; and a market for the sale of
butchers' meat and other marketable commodities has been always
held on the Market Hill during the day-time on Wednesday ; and a like
market was also holden there on Saturday evenings, until the butch-
ers commenced to sell their meat on Saturday upon the May-Day
Green. They so commenced more than thirty years before the com-
mencement of these proceedings ; and since then, without interrup.
tion, the sale of butchers' meat and several other marketable commo-
dities upon stalls or standings has taken place on Saturdays upon the
May Day Green ; and on Wednesdays also the market generally has
been held, not only on the May -Day Green, but also on the Market
Hill.

•The butchers placed stalls on the May-Day Green for the r*ogQ
purpose aforesaid; and pipes were laid for supplying gas, '■
and the same was supplied to and paid for by the stall-owners.

Some of the butcners have paid, during the past thirty years,
although irregularly, to lessees and others, stallage rent for standing
upon the May -Day Green : but the right to collect this stallage has
always been disputed.

The commissioners appointed under the said act of 3 G. 4, c. xxv.,
did not purchase the rights of the lord, but purchased the piece of
land called the Market Hill ; and in other respects continued to exer-
cise their powers under the act until the year 1853, when the general
board of nealth made a provisional order, which was confirmed by
the statute 16 & 17 Vict. o. 24 (called "The Public Health Supple-
mental Act, 1853, No. 1"), so far as the same was authorized by the
Public Health Act By this order and statute a local board of health
was constituted in the town of Barnsley : and it was thereby provided
by the respective sections next set out, as follows : —

"7. The parts of the said local act specified in the schedule to this
order shall oe repealed, except in so far as the same repeal any other
act or acts of parliament.

''8. All the powers of the commissioners under the said local act,
and those of their officers and servants^ shall wholly cease.

"9. Such of the said powers as are granted by the unrepealed parts
of the said local act, shall, so far as the same are not repugnant to or
inconsistent with the said Public Health Act or this order, or any
by-law lawfully mad^ under the said Public Health Act, be t^a^s-
ferred to the said local board of hea]th and the officers of the said
local board, and stif^ll be ^exercised in the same manner as if r*270
such powers bad been granted by the said Public Health Act. ^

''}0. The said local board of health shall be the commissioners tqx
executing the unrepealed parts of the said local act.

270 SAVAGE, App., BROOK, Resp, M. T. 1863.

"11. The provisions (except as aforesaid^ of the said Public Health
Act may, whenever practicable, be appliea to anything which shall
arise under the unrepealed parts of the said local act ; and such unre-
pealed parts shall be incorporated with the said Public Health Act,
and shall extend to the whole of the said township.

'* 12. All property and estate whatsoever of the comniissioners
nnder the said local act shall be transferred to the said local board of
health, and shall be held by them upon the same trusts and for the
same purposes as by such commissioners."

And it was also provided that — ''17. In the event of the purchase
by the said local board, acting as commissioners in the execution of
the unrepealed parts of the said local act, of market and fair rights,
and other matters and things pertaining thereto, under the 74th sec-
tion of the said local act, the sections of the Markets and Fairs
Clauses Act, 1847, — with respect to the construction of the market or
fair and the works connected therewith, except so much thereof as
relates to lands taken compulsorily, — and the holding of the market
or fair, and the protection thereof, — and slaughter-houses, — ^and weigh-
ing goods and carts, — and stallages, rents, and tolls, — and by-laws, —
shall be incorporated with so much of the said local act as remains
unrepealed by this order, and with the said Public Health Act as
applied to the said township by this order, and any act of parliament
confirming the same: and the expression *the special act,' used in the
*2711 ^^^^ sections, shall be construed to mean the 'unrepealed parts
■• of the said local act and the said Public Health Act so applied ;
and the expression ' limits of the special act,' used in the same sections,
shall be construed to mean the district constituted by this order ; and
the expression * the commissioners,' used in the said sections, shall
mean the said local board."

The schedule to the said provisional order was as follows: — "The
parts of the local act referred to in this order to be repealed, are as
follows, that is to say, — the sections numbered respectively, in the
copies of the said act printed by the Queen's printers, 1 to 84, 37 to
89, 43 to 60, all inclusive; 61, 62, 65 to 73, 75 to 92, 94 to 96, and
99 to 141, all inclusive; and so much of any unrepealed part of the
said act as fixes the amount of any penalty for any ofience under the
said act, wherever the penalty for such offence is fixed by the Public
Health Act or any act hereby incorporated therewith, or by any
by-law of the local board of health, at an amount other than that fixed
by the said local act."

Under the heading in the Markets and Fairs Clauses Act, 1847,
which has reference to the construction of the market or fair, there is
a clause (10) of that act which is in the following words, — " Subject
to the provisions in this and the special act, and any act incorporated
therewith, the undertakers for the purpose of constructing a place for
holding the market or fair may execute any of the following works,
that is to say, —

"They may enter upon any lands described in the special act or the
schedule thereto, or other lands purchased by them or belonging to
them, and set out such parts as they think necessary for the purposes
of the market or fair, and thereupon from time to time build and main-
tain such market-places or places for fairs, and such stalls, sheds, pens.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 271

and other buildings or *conveniences for the use of the persons r#o7o
frequenting the market or fair, and for weighing and measuring »■
goods sold in the market or fair, and for weighing carts, as thej may
think necessary :"

'* They may from time to time on such lands as aforesaid make and
maintain all such roads and approaches as they may think necessary
for the convenient use of the persons resorting to the market or
fair."

The local board was duly elected, and has since exercised the
functions conferred upon them by the Public Health and Local Gov-
ernment Acts; and the property belonging to the commissioners
became vested in them. Among other property was the piece of
land, containing about 990 yards, above referred to, and termed the
Market Hill.

In the month of July, 1860, a resolution was passed at a meeting
of owners and rate-payers of the district of the township of Bamsley
(being the district of the said local board), that the local board should
have power to do the following things, or any of them, within their
district, —

"To provide a market-place and construct a market-house and
other conveniences for the purpose of holding markets in the said
district :

"To provide houses and places for weighing carts:

"To make convenient approaches to such market:

" To provide all such matters and things as may be necessary for
the convenient use of such market :

"To purchase or take on lease land, and public or private rights in
any market, and tolls, in the said district, and particularly the right
to certain land and appurtenances and to certain fares, markets, lolls,
and similar franchises, belonging to the trustees of the late Duke of
Leeds, for any of the foregoing purposes ; and

'' To take stallages, rents, and tolls in respect of the use by any
person of such market-house." r*273

•This resolution was carried upon a poll. *■

The local board thereupon completed an arrangement which thev had
been negotiating for the purchase of the rights to the markets ana fairs
belonging to the Duke of Leeds : and by a conveyance dated the 12th
of June, 1861, between the trustees of the will of the late Duke of Leeds
and the local board of health of Barnsley, which was executed with the
sanction of the Court of Chancery, the said trustees, in consideration
of the sum of 27002. paid to them by the said local board, duly conveyed
to the said board : *' Firstly, all those the markets and fairs, and right and
privilege of holding markets and fairs within the township of Barnsley
m the parts and places where such fairs and markets have heretofore
been customarily held, and in any other public parts and places within
the said town wherein the same may be legally held, together with all
pickages, stallages, market and fair rents, tolls, duties, free customs,
profits, advantages, and rights belonging, due, or appurtenant to such
fairs and markets, or to the owner or owners thereof, within the town
of Barnsley, and together with the free use and enjoyment of all or
any of the streets, roads, and ways within the said town for the pur*
pose of holding such markets and fairs therein, and of collecting and

273 SAVAGE, App., BROOK, Resp. M. T. 1863.

enforcing and compelling payment of all pickages, stallages, market
and fair rents, tolls, duties, and profits for the time being payable or
demandable in such markets and fairs, or any of them ; and all other
franchises, rights, privileges, and liberties in or about or belonging to
such right of holding fairs and markets, so far as the said Viscount
Nevill, Frederick Acclom Milbank, Thomas Fairfax, Sir James Fer-
guson, and Joseph Henry Hudson, as trustees of the will of the said
William Frederick, late Duke of Leeds, can grant the same, — Secondly,
*2741 ^^' ^^^^ *plot, piece, or parcel of land situate in the said town-
-1 ship of Barnsley, called or known by the name of the Church
Field or Michaelmas-Fair Field, containing four acres, one rood, and
twenty-two perches, or thereabouts (subject to all rights of road and
other rights affecting the same, and particularly to a certain right of
road nine feet wide from a street called St. Mary's Gate to Fair-Field
House, formerly sold by the said Duke of Leeds), and which said
piece or parcel of land is more particularly described upon the map
or plan endorsed on the third skin of these presents, and is therein
coloured green, — Thirdly, all that waste or unenclosed land or ground
situate in the township of Barnsley aforesaid, called or known by the
name of the May-Day Green, and shown upon the said map or plan,
together with all and all manner of lawful profits, commodities,
privileges, and advantages whatsoever coming, arising, renewing,
increasing, or payable for or in respect of all and every the said fairs
and markets and every of them hereafter to be holden and kept under
or by virtue of these presents for the said town of Barnsley, within
the bounds, limits, and precincts of the same, — except and always
reserving, nevertheless, unto the said trustees, all coal, ironstone, lead,
and other minerals lying and being within and under the said pieces or
parcels of land and hereditaments, with powers of winning, working,
and getting away the same, as they are entitled to under the Barnsley
Enclosure Act, To have and to hold the said markets and fairs, and
right and privilege of holding markets and fairs within the said town,
together with all pickages, stallages, market and fair rents, tolls, dues,
duties, free customs, profits, advantages, and rights, pieces or parcels
of land and waste or unenclosed land firstly, secondly, and thirdly
hereinbefore particularly described, and expressed to be hereby
4^2^51 granted, and other *the premises hereinbefore expressed to be

' -' hereby granted and released, or otherwise assured, or intended
so to be, un{o and to the use of the said local board of health, their
successors and assigns, for ever."

As soon as the conveyance was executed and the local board ob-
tained possession, they proceeded to frame by-laws and to settle tables
of tolls for the markets and fairs. The by-laws purported to be made
and ordained by the local board of health for the district of the town-
ship of Barnsley, in the county of York, for the better regulation of
the markets and fairs and market-places for the sale of cattle, animals,
and provisions, and all other marketable commodities within the said
district, pursuant to the powers and prorisions contained in Tlie Pnb-
lio Health Act, 1848, The Public Health Supplemental Act, 185S,
(No. 1), and The Local Gorernment Act, 1858.

The notices required by the Public Health Act were duly given,
and the by-laws were submitted on the 8th of October 1862 to Her

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 275

Majeafrf 's principal secretary of state for the home department, who
on the 27th of November, 1862, returned the same allowed. Public
notice was given that such by-laws and table of tolls had been duly
approved by such secretary of state, and that the markets and fairs
would be opened on the 11th of April last under the provisions of the
Local Government Act, 1858, ana that after that day the by-laws
would be strictly enforced.

The certificate of two justices required by the 10 & 11 Vict. c. 84,
8. 32 (The Markets and Fairs Clauses Act, 1847), was also obtained,
certifying that the Corn Exchange or Market House, Market- Hill,
May-Day Green, Church Field, and other places to be used for fairs
within the said district, were properly completed and fit for public use.

♦The 8d and 4th by-laws were as follows : — P276

"Appropriation of the open market. Market Hill. L

"3. The open market, situate on Market Hill, in Barnsley aforesaid,
shall be appropriated as a market for the sale therein, on Wednesdays,
of butchers' meat, bacon, pork, cheese, eggs, and butter in the firkin
or laid down, flower roots, plants, trees, shrubs, calicoes, cloth, linen,
mercery, articles of dress, provisions, coopers' ware, pastry, spices,
confectionery, books, nuts, brooms, besoms, and hardware; and on
Saturdays the same shall be exclusively appropriated for the sale
therein of butchers' meat, bacon, pork, cheese, eggs, and butter in the:
firkin or laid down."

" Appropriation of the open market, May-Day Green.

"4. The open market situate on May-Day Green, in Barnsley afore-
said, shall be appropriated for a market for the sale therein of horses,
cattle of all kinds, calves, sheep, pigs, geese, fruit, vegetables of all
sorts, fish, earthenware, potters* ware, glasses, hay, straw, grass, and
vetches, medical wares, old metal, images, pictures, cutlery, hardware
and smallware, clothing, boots, and shoes : Provided, however, that
these several appropriations shall be open to alterations and additions
at any time hereafter, as tbe said local board of health shall find
requisite or convenient."

The 6th by-law was as follows: — •

*' As to articles offered for sale.

'*No article shall be offered for sale or sold in any market, or kept
or brought into the same for sale, other than such for which the said
market or part of anv such market shall have been appropriated as
hereinbefore set forth. Every person ofiending against this by-law
shall forfeit and pay for the first offence the sum of ds,, for a second
offence the sum of lOtf., and for every offence subsequent to a second
offence the sum of 20«."

* *The 12th and 13th by-laws are as follows : — r*27T

" Stalls to be placed on the parts appropriated. ^

" 12. No atall, bench, cart, hand-cart, wheelbarrow, hamper, basket,
box, er tab, or other article, shalPbe placed otherwise than as and
where the inspector of the market shall direct ; and the several arti-
cles brought into the market shall be sold and placed and exposed for
sale only at or in such parts of the market as shall be appropriated
^ the regulations herembefore specified for such articles respectively.
Every person offending against this by-law shall forfeit and pay fojr

0. B. K. 8., VOL. XV.— 12

277 SAVAGE, Ape., BROOK, Resp. M. T. 1863.

tbe first offence the sum of 28. Qd., for a second offence the snm^ 6$^
and for any offence subsequent to a second offence, the sum of 10^.

" 13. Provided that these by-laws shall not extend or be deemed or
construed to extend to prohibit any person from exposing.or offering
for sale any marketable commodities in any shop or warehouse not
being in one of the said markets, or in his or her dwelling-house, oV
to subject such person to any penalty for so doing.''

The following table of tolls is appended to and forms part of the
by-laws made by the local board : —

" Barnsley Local Board of Health.
** Markets and Fairs.

'' Stallages, rents, and tolls to be from time to time demanded and
taken from any person occupying or using any shop, stand, stall, shed,
apace of ground, or place in any market-place or market-house appro-
priated by the said local board of health for the holding therein of
markets and fairs, and belonging to the said local board of health, or
which they are entitled to use, or bringing therein any cattle, animal,
£Oods, provisions, articles, or things, by the said local board of health
:under and by virtue of the powers and provisions contained in The
♦5781 ^^^^^^ Health Act, 1848, *The Public Health Supplemental
J Act, 1853, (No. 1), and the Local Government Act, 1858, and
4tgreed to, adopted, and made by the said local board of health at a
meeting of the said board duly convened and held on the 22d of
August, 1862.

" Market and Fair Tolls.— Stalls.

a, d,
" From the occupier of each butcher's stall on Saturdays, for the use of
the party taking only, including gas, water, fixing, removing, and eleana-

iDg, j>er week ^ 36

** From the occupier of each butcher's stall on Wednesdays only ' . .16

" Ditto, if one gas-light be provided extra 6

" From the occupier of each stall for the sale of fish, for each and every

«Dperficial foot thereof-:

"If taken by the year 6 6

"If taken by the half-year 3 6

" If taken by the quarter 19

"If otherwise taken or occupied, for each market-day or other day in

the week, per superficial foot 0}

*' If one gas-light be provided extra 6

, ** From the occupier of each stall or article used as such for vegetables
jtfid fruit on Wednesdavs and Saturdays and fair days, eight feet in length

ftikd four feet in breadth 9

" For the like stalls, when used on any other day in the week .0 4}

*^ Stalls or articles used as such of greater or less dimensions, in the same

proportion ; if one gas-light be provided, extra % 6

'*^For standaee of all goods sold by auction, per superficial foot of the

jjgroand covered by the eoods 1

^* For standage of each hawker's cart or wagon, per day . .36

The markets having thus been opened, and the by-laws duly made,
allowed, and published, as above stated, a person named Francis
3rook, of Wakefield, butcher, on Saturday, the 6th of June last,
•*2791 *^^^ ^^^ *market-place had been opened to public use. placed
J and exposed for sale certain butchers' meat on the May-Day
.Green, not being the place appropriated for the sale of butchera'.meat
by the by-laws above referred to, and continued to expose the same
S^r stie notwithstanding the said by-laws, and contrary to the direc-

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 279

tioi#of tbe local board of health through their officer, namelj the
inspector of «the markets.

The local board of health thereupon caused this information to be
laid by George Savage, the inspector of the markets, before the jus-
tices, for a penalty for a breach of the by-laws above set forth ; and,
on the hearing, the defendant contended that the above by-laws, —
especially the fourth and sixth, — were invalid and inoperative against
him, on the following grounds, namely, that the above-cited 64th
section of the local act, 3 G. 4, o. xxv., not having been repealed, no
person was liable to a penalty for exposing butchers' meat for sale in
the public places in the town of Barnsley theretofore used for that
purpose ; and that the by-laws prohibiting the sale of butchers' meat
on the May-Day Green, and also the by-law setting apart the Market
Hill as the only place for the sale of butchers' meat, were not legal, m

For the informant, it was contended that section 64 of the above-
mentioned local act only referred to penalties under that act, and had
no operation in reference to the present penalty, which was incurred
under the Public Health and Local Government Acts, for violating a
by-law made by the local board of health for the purpose of regulat-
ing the use of the markets vested in them by their purchase from the
trustees of the Duke of Leeds, and by virtue of the powers contained
in clause 9 of the provisional order hereinbefore mentioned, and in
the Markets and Fairs Clauses Act, 1847.

*The justices were of opinion that the argument of the de- r«280
fendant was correct, and dismissed the information, subject to *-
the opinion of this court upon the following questions, —

First, whether, in consequence of the 64th section of the local act,
8 G. 4, c. XXV., being unrepealed, the defendant was liable to a pen-
alty for placing and exposing butchers' meat for sale in the May-Day
Green, under by-law No. 12,— Secondly, whether the by-law num-
bered 6 is a good and valid by-law, — Thirdly, whether the by-laws
numbered 3 and 4 are good and valid by-laws.

And the judgment of the court was accordingly required upon
these questions ; it having been agreed that all the by-laws made by
the local board, and the whole of the statute 3 G. 4, o. xxv., and the
conveyance from the trustees of the Duke of Leeds, with the map or
plan thereupon endorsed, not set out in the case, might be referred to,
if requisite, as if the same had been made part of the case.

If the court should affirm the determination of the justices, the
information was to stand dismissed ; but, if they should reverse it, a
conviction for the penalty of 25. 6d. was to be awarded against the
defendant; or such further order was to be made in the matter as to
the court should seem fit.

Jianisti/f Q, G., for the appellant,(a) submitted that *it was r^oai
competent to the local board of health of Barnsley, so soon as ^
tbev had become owners of the markets there by purchase from the
Duke of Leeds, and had provided proper places for holding markets,—*

(•) tiM polaU narktd for Mrgnmenft on the part of the ftppoUaiik woro «• follows :—

« L That the MTtral by-Uwi Mft ovt la the eaie aro Tilid, and that for Vfoaobaa of tbam tkf

yrtieribod poaaltioi maj bo oaforoed ;

«S. That tho 64tb Motion of tho 8 Q. 4, e. zzt., only rofon to ponaltioa irapoiod undor that

■«^ aad haa no nforanoo or oporatlon at to ponaltioa laovrrtd bj broaohoa of bj-lawa auida kj.

Iht looal board of hoalth ate tho airramitaaoif Hatid ia tho MM."

281 SAVAGE, App., BROOK, Resp. M. T. 1863.

whicli were not neoessarilj confined to Any particular spot, but migbt
be erected in any convenient spot within the borough,(a) — pursuant
to the 50th section of the Local Grovernment Act, 1858 (21 k 22 Vict.
c. 98), to make by-laws for their regulation, and to appoint^ as they
had done here, certain places for the exclusive sale of the several arti-
cles to be exposed therein ; that, what the local board did was no
interference with any prescriptive right of the inhabitants of the
borough ; and that all that was meant by the 63d and 64th sections
of the local act of 3 G. 4, c. xxv., was, that parties should not be held
liable to penalties imposed by Oiat act for nuisances committed in the
public streets bv the exposure for sale of their goods in places where
the markets had theretofore usually been held.

flayes, Serjt. (with whom was Berea/ord), for the respondent.(ft) —
'*'2821 ^^^^ ^^ ^^^ ^^^® ^^ making these '^by-laws in 1862, there had

^ been two markets held in Barnsley, the one at Market Hill, the
other at May-Day Q-reen. The by-laws which the local board of
health have made, are not for regulating these markets, but for
abolishing one of them, viz. the May-Day Green market, as respects
the sale of butchers' meat there, — which has been held since the year
1249, without any interruption, so far as appears from the case.
[Btles, J. — The whole evidence of title is that contained in the para-
graph of the case at p. 268, where it is stated that "a market for the
sale of butchers' meat and other marketable commodities has been
always held on the Market Hill during the day-time on Wednesday;
and a like market was also holden there on Saturday evenings until
the butchers commenced to sell their meat on Saturday upon the May-
Day Green. They so commenced more than thirty years b^ore the com-
mencement of these proceedings ; and since then, without interruption,
the sale of batchers' meat and several other marketable commodities
upon stalls or standings has taken place on Saturdays upon the May-
Day Green: and on Wednesday also the market generally has been
held, not only on the May-Day Green, but also on the Market Hill."]
The 64th section of the 3 G. 4, c. xxv., which is unrepealed, and
which forms part of the special legislation for the township of Barns-
ley, expressly provides that " no person shall be subject to any pen-
alty by virtue of this act for placing or setting any stalls or standings,
*2881 ^^ '^exposing to sale any provisions, goods, wares, merchan-

^ dises, or other articles or things whatsoever^ in such parts of

(a) Sm EULi v. The Kftyor, 4e., of BridgBorth, utd, p. 62.

{h) The point! marked for argument on the part of the respondent were ai ^oBovi :—

** 1. That, under the oiroumataooes stated, the respondent cannot be eompeUed to remove his
•tsU ftom Maj-Day Areen to Market HiU, and thereby make himself liable to p9y tolls or
stallage :

" S. That the respondent had acquired a prescrlptiTe right to ezpoae fi)r«a]»1>«tohflr^s meat
on Kay-Day Green, and snch right was not aifected by the l^4aws :

'<8. That the 64th section of the local act 8 G. 4, c zxv., Uing unrepealed and virtuaUy
^^-•nactod by the special uot, the tuspondent is thereby protected from the peaaltief «ough4 1«
ha impofud:

<«i. That the biy-laws nnmUnd 3 and 4 are invaUd, as being i^iw&aftt 4o tha«iaM H*
faction, which Is IncorpoMted wiUi €he special act «nder the 42d Metion^f Ihe Jfailtfto and
VMrsOfamsM Act, 10 Vlat. c 14 :

« 6. That by-Uw No. 6 is inralid, nadar the 4Sd lactioA of 4hat ao({

^ 6. Hhnt the toUi and pn^menU aought to bo wltaood ^guaai tho.|is^^<adwil ModmnU^
uhto tfan WAi Mttlon ofthM aA.^

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 28*

tlae several streets, &c., and public places within the said town as
shall haye been heretofore used for that purpose at the times of the
UBual/airs and markets within the said town, due care being taken to
impede as little as possible the public passage along the same.'* This
is an attempt to impose upon the respondent a penalty for an act
which is expressly made lawful by that clause. [Bylks, J. — That act
passed forty years ago, and consequently before the commencement
of the thirty years' user upon which you rely.] 'It is to be read as
if it were re-enacted in the Local Government Act, 1858. [Byles,
J. — Still, the word " heretofore" in s. 64 of the local act refers to a
time prior to 1823.] That would be giving it no operation at all. It
is submitted that the words '' by virtue of this act," in s. 64, must be
taken to mean, by virtue of the special legislation based upon the
order of the general board of health, in 1853," confirmed and made
of equal force with an act of parliament by the 16 & 17 Vict. c. 24.(a)
It incorporates *the unrepealed provisions of the local act, and r^og^
makes them speak as from the date of the later act. The 42d ^
section of the Markets and Fairs Clauses Act, 1847, was never in-
tended to confer so extensive a power on the local board as they seek
to exercise upon the present occasion. It is not the common-law
power to change the locality of the market which they profess to act
upon. Their power is, to. regulate, not to destroy. It was not the
intention of the legislature that legal vested rights should be inter-
fered with by these by-laws.

Manisiyy in reply.— The 28th section of the Towns Police Clauses
Act, 1847 (10 & 11 Vict. c. 89), comes in lieu of the nuisance preven-
tion clause (s. 62) of the 3 G. 4, c. xxv. The local board of health
had ample power to make by-laws for regulating the markets within
the township of Barnslev, and to impose penalties for any breach of
those by-laws. It may be conceded that the board had no right to
exclude the respondent from the market ; but they had a right to
make regulations as to the part of the market to which he and the
rest of the persons carrying on his trade should go. Market Hill
was the only legal market for the sale of butchers' meat ; though by
encroachment butchers had for a certain period been accustomed to
expose meat for sale on May-Day Green also. There is, howeverj
clearly no prescriptive right which is interfered with by the by-laws
in question.

Erlb, C. J. — I am of opinion that the by-laws in question are good,
and that a conviction in this case would have been proper. The ap-
plication of the Public Health Act, 1848, to the town of Barnsley

(d) Saet 17 of the Bftrniley order, in the lohedalo to tb&t aot, providM, that, " in the eyenl
of the parobai« by the said local board aotiog as oommiitioneri in the ozeontion of the unre-
pealed parti of the said local aot (3 G. 4, o. zzt.), of market and fkir rights, and other matters
and things pertaining thereto nnder the 74th section of the said local aot, — the sections of the
Markets and Fairs Clanaes Act, 1847 (10 A 11 Vict. c. 14), with respect to the construction of
the market or fkir and the works connected therewith, except ao much thereof as relates to lands
taken eompnlsorilj ,* and At holding of tht market or /air, and the protection thereof; anS
slangbter-honses ; and weighing goods and oaru ; and stallages, rents, and tolls; and 6jf-fow%
— shaQ be incorporated with so much of the aaid local aot as remains unrepealed bj this order^
aad with the said Pnblio Health Act as applied to the said township bjr this order, and any act
ef parliamsni opDfirming the same."

284 SAVAGE, App., BROOK, Resp. M. T. 1868.

*2851 ^*® *inacle in 1858, by a provisional order of the General
J Board of Health, which derives the authority of an act of
parliament from the 16 & 17 Vict. c. 24. This provisional order,
'Which is set out in a schedule to the statute, contains many clauses,
by one of which (the 17th) the provisions of the Markets and Fairs
Clauses Act. 1847, with respect to the construction of a market in the
town of Barnsley, and the making of by-laws for its regulation, are
incorporated with the local act 8 G. 4, c. xxv. One of the provisions
of the Markets and Fairs Clauses Act, 1847, which is thus incorpo-
rated is the 42d, by which it is enacted that the undertakers may
from time to time make such by-laws as they think fit, for, amongst
other things, '* regulating the use of the market-place, and the build-
ings, stalls, pens, and standings therein, and for preventing nuisances
or obstructions therein or in the immediate approaches thereto," and
for " fixing the dayS; and the hours during each day, on which the
market shall be held." And it goes on to provide that the undertakers
may from time to time as they shall think fit, repeal or alter any such
by-laws, ''provided always that such by-laws shall not be repugnant
to the laws of that part of the united kingdom where the same are to
have effect, or to the provisions of this or the special act, or of any
act incorporated therewith." The local board, therefore, are directed
to make by-laws for the regulation of the use of the market In the
town of Barnsley, it appears, a market ;¥as granted some eight hundred
years ago. The whole town of Barnsley was liable to become a
market-place : and the usage would show what part of the town was
the place so assigned. Originally, it seems, it was a market for the
sale of butchers' meat and other marketable commodities, and was
held on Wednesday on a place called the Market Hill. In course of
*2861 ^^^^ ^ ciame '^'to be held on Saturday also : and the continuance
-' of the practice for a long series of years might constitute that
a lawful market for the town of Barnsley. The town has greatly
increased in extent and population : and the number of persons resort-
ing to the market, and the quantity of articles of all descriptions
brought to the market, have likewise greatly increased; and for about
thirty years May-Day Green has also been used on Saturday evenings
as a market-place for the sale of butchers' meat. The local board of
health, having under the authority of the 74th section of the local act
acquired the market and fair rights in Barnsley, proceeded to erect a
market-house and to make regulations for the government of persons
resorting thereto for the sale of goods, prescribing the particular
places to which they should carry their wares: for instance, the
covered market was to be appropriated as follows, — the ground-floor
^ for the sale therein of poultry, fresh butter, and eges, — the first-floor
for the sale therein of oats, wheat, barley, peas and beans in grain,
seeds, oil-cake, and tillages. Then, as to the open market on Market
Hill, it was to be appropriated as a market for the sale therein on
Wednesdays of butchers' meat, bacon, pork, cheese, eggs, and butter in
the firkin or " laid down," flower-roots, plants, trees, shrubs, calicoes,
cloth, linen, mercery, articles of dress, provisions, coopers' ware,
pastry, spices, confectionery, books, nuts, brooms, besoms, and hard-
ware: and on Saturdays the same was to be exclusively appro-
priated for the sale therein of butchers' meat, bacon, pork, cheese,

COMMON BENCH RBPORTS. (15 J. SCOTT. N. S.) 28ft

eggs, and butter in the firkin or "laid down." The market-plaod
on May -Day Green under the same regulation is dedicated to the
sale therein of horses, cattle of all kinds, calves, sheep, pigs, geese^
frait, vegetables of all sorts, fish, earthenware, potters' ware, glasses^
hay, straw, grass, and vetches, medical wares, old metal, images,
•pictures, cutlery, hardware and smallware, clothing, boots, and r»2Q7
shoes. It seems to me that the local board have classified the ^
various articles to be sold in the respective markets in an extremely
reasonable manner, whereby persons resorting to the market for the
purpose of selling have convenient accommodation afforded them for
the display of their goods, and those coming thereto for the purpose
of buying may know where to find each article they may want, — '
thus making the market more accessible and suitable for the purpose
for which markets are established. Such, then, being the rights of
the local board, and such being the franchise, — the whole constituting
one market, whether held in the market-house, on Market Hill, or on
May-Day Green, — the party against whom the complaint was made
before the justices was a butcher to whom the Market Hill was pointed
out as the place of resort for persons of his trade ; and he chose to
resort to May-Day Green instead. It seems to me that the by-law
was a reasonable one, and that the respondent was guilty of a viola-
tion of it, and was liable to the penalty. The difficulty presented
before the magistrates, and which we as well as they have felt to be
a very grave one, arises from the local act of 8 G. 4, c. xxv., for the
management of the town of Barnsley, which gave the usual powers
to commissioners as to lighting, watching, and generally preventing
nuisances in the town. The 62d section of the act specified a variety
of nuisances to be prohibited, and amongst them the exposing goods
for sale in the public streets so as to obstruct or incommode the pass-
age of any person or carriage, and imposed a certain penalty on per-
sons offending in this respect. Then comes the 64th section, which
enacts that " no person shall be subject to any penalty by virixie of this
act, for placing or setting any stalls or standings, or ^exposing r^oga
to sale any provisions, &c., in such parts of the several streets, ^
lanes, passages, and public places within the said town as shall have
been heretofore used for that purpose, at the times of the usual fairs
and markets within the town, due care being taken to impede as little
as possible the public passage along the same." The respondent
relies upon this clause as exempting him from penalties under the
by-laws, inasmuch as he and all other persons carrying on the trade
of butchers had before been used to sell their meat on the market-
days at the stalls on May-Day Green. Now, the 64th section of the
local act is incorporated with the 16 & 17 Vict c. 24, under which the
Barnsley local board of health is created ; and I assume that the 64th
section is to be taken as if it had been then for the first time enacted,
and that the word '' heretofore" is to be read as meaning '* before this
act." It is material, because at the time of the passing of the 6 G.
4, c XXV., May-Day Green was not used as a market for the sale of
batchers' meat: and we have to say whether the by-law in question is
repugnant to that section. It seems to me that what was contemplated
by the 64th section was this : — Whereas, by the 62d section, persons
exposing goods for sale in the public streets are declared guilty of a

888 SAVAGE, App., BROOK, Resp. M. T. 1863.

nuisance and liable to a penalty, such penalty shall not be enforced
for exposing goods for sale on market-days, if the spot where such
exposure for sale takes place shall have been theretofore used for that
purpose, and the times are the times of the usual fairs and markets
within the town. It saves the use of the spot for marketing purposes,
but does not in my judgment save to any individual the right of resort-
ing for those purposes to any particular place where he had before
been accustomed to go. I do not think that was at all the meaning
♦2891 °^ *^® statute. It *contemplated the overflow of the market
J and its growth beyond the ancient bounds of the market-
place, and protected from penalties those who exposed their goods on
market-days in the streets and places immediately contiguous to the
market-place. Subject to this, the regulations made by the local
board are to be applied. That being so, the by-laws in question do
not prevent or in any manner interfere with the use of any part of
the town of Barnsley which had been used before for market par-
poses. On the contrary, they take notice of May-Day Green as a place
which had been used as a market, and provide that henceforth it shall be
devoted to the sale of live stock and the other articles of merchandise
before enumerated. The whole of the places which theretofore had
been used for the purposes of a market are fairly regulated with
reference solely, as it appears to me, to the convenience of the sellers
as well as of the public who resort to the market to buy, giving to
both the fullest enjoyment of the rights and privileges of a market.
If parties choose to come to that part of the market which is excla-
sively appropriated to cert^ain descriptions of goods, and insist upon
exposing for sale there articles which the by-laws require to be ex-

{)osed for sale in a different part of the market, they violate the rega-
ations, — which, as I have before said, I consider to be very reasona-
ble, — and must bear the penalty. That is the way in which these two
sections are in my judgment to be construed. It seems to me that
the local board had authority to regulate the mode as well as the time
of using the market. It clearly was competent to them to say, as
they have said by the fifth by-law, that the market shall not be opened
for business until a certain hour. Persons using the market most
conform to that regulation ; and, if they insist upon coming there at
*9Q01 *^ earlier hour, or upon keeping their 'stalls open after tlfe hour
J prescribed for closing, they are clearly guilty of a breach of a
reasonable by-law, and are liable to the penalty ; and this is totally
different from the penalty imposed by the 62d section of the 3 G. 4,
c. XXV., for obstructing a public way by exposing goods for sale
therein under circumstances which did not bring the parties within
the proviso in s. 64.

There is, undoubtedly, very considerable difficulty in bringing one's
mind to a clear and satisfactory opinion upon a number of imper-
fectly recited acts, with some of which certain provisions of others
are incorporated, and others of which confer powers to make by-laws,
with no "very accurately defined limit. If they apparently conflict,
all that I can do is to put the best construction upon them which the
powers of my mind enable me to do. But if I see a public bodv
exercising in a fair and honest and reasonable manner powers which
are conferred upon them for the benefit of the public, I should re

COMMON BENCH REPOBTS. (16 J. SCOTT. N. S.) 290

quire a very strong case to be made out to induce me to come to the
conclusion that all they have done is to be set aside, and to hold, that,
in a case like this, every tradesman who may have used May-Day
Green as a market for the sal^ of butchers' meat for a month or a
week or any other time, may, in defiance of the regulations made by
the local board, insist upon continuing to resort to the same spot for
that purpose. I do not think that would be at all for the convenience
of the town of Barnsley ; nor do I think it is what the legislature
could have contemplated. I am well aware that this question is not
entirely confined to persons living in the town of Barnsley, but affects
the rights and the interests of all the Queen's subjects who may wish
to resort to the market of that town for the purpose of buying or
selling. My observations have been particularly directed *to pogi
this, that, if I were to hold that these by-la.ws might be vio- ^
lated with impunity, I should be putting it in the power of any per-
son so disposed to vex and harass the local board by introducing all
sorts of confusion and disorder into the markets of the town of
Barnsley.

The rest of the court concurring, Judgment for the appellant.

BOOTH V. GAIK. Nov. 13.

Baeon wm innired from New York to Lirerpool on a poliey deoIariDg it to be ** wamnted
free from arerage, anleee general, or the ship be itranded, sank, or barat" In the eonrae of
the Toyage, the reuel encountered bad weather, and the master, for the presorration of the fhip
and eargo, pnt into Bermuda, where on survey the ressel |ras found to be so much damaged
that she could only be repaired at an expense exceeding her value when repaired ; and she waf
aecordtngly sold. Surreys were then held upon the cargo, in order to determine what should
ba sent on and what sold. Part of the bacon was (bund too muoh damaged for re-shipment,
and was sold : the rest was re-shipped, and arrived partially damaged at Liverpool.

The assured claimed against the underwriters the difference between the original freight and
the increased freight on the portion so carried on, the warehouse-rent incurred at Bermuda, the
•xpense of the surveys on the goods, and the cooperage on those forwarded, — all which charges^
except the cooperage. It was admitted upon a ease stated for the opinion of the court (who
were to draw inferences) that down to the date of the policy in question it was the custom of
underwriters to pay, under the name of "particular charges," upon policies in the same
form : —

Held, upon the authority of The Great Indian Peninsular Railway Company v. Saunders, I
B. k Sm. 41, 2 B. ib Sm. 366, that the underwriters were not liable for any of the above charges ;
and that the circumstances of the goods being of a perishable nature did not consdtute any
substantial distinction between the two cases.

This was a special case stated for the opinion of the court, without
pleadings, pursuant to the Common Law Procedure Act, 1854.

1. The plaintiff is consignee and owner of one hundred and
eighteen boxes of bacon, which were shipped on board the ship Plan-
tagenet at New York, which vessel was bound for Liverpool.

2. The defendant^ on the 15th of January, 1862, insured the said
bacon by a policy which contained a clause, that, in case of any loss
or misfortune, it should *be lawful to the assured, their factors, r«292
BOTvants, and assigns, to sue, labour, and travel for, in, and ^
about the defence, safeguard, and recovery of the said goods and mer-
ebandises and ship, &c., or any part thereof, without prejudice to that
insurance, to the charges whereof the assurers should contribute each

292 BOOTH v. GAIR. M. T. 1863.

one according to the rate and quantity of bis sum assured. The
policy was also warranted " free from ayerage, unless general, or the
ship be sunk, stranded, or burntJ'

8. The Plantagenet sailed from New York on the 11th of January,
1862, in due prosecution of her voyage, but met with heavy gales,
and the ship worked and strained very much, and leaked so as to
require all hands at the pumps, notwithstanding which the water
gained on the pumps ; and for the preservation of the ship and cargo
she bore away on the 2l3t to Bermuda as a port of refuge, where she
came to anchor on the 1st of February following.

4. When the ship arrived at Bermuda, and under the advice of
competent surveyors, the cargo was discharged; and, on a carefal
examination of the ship, it was found that she was so badly damaged
that she could only be repaired at Bermuda at an expense exceeding
her value when repaired; and the vessel was accordingly condemned
to be sold. Surveys were then held upon the cargo, in order to ascer-
tain its state, and to determine what should be sent on and what should
be sold. Parts of it, including a portion of the bacon the subject of
this case, were found to be too much damaged for re-shipment, and
were sold by the advice of the surveyors, and the remainder (includ-
ing the remainder of the bacon the subject of this case) was tranship-
ped on board two vessels, the Magnet and the Surprise, for Liverpool,
at which port it afterwards arrived.

5. The portion of the bacon so sent on was partially damaged by
the perils insured against.

♦2931 *^' ^^ ^^ admitted that all the above acts were proper un-
^ der the circumstances. The expense of the transhipment of
the part of the bacon sd* shipped, and the freight of the Magnet and
the Surprise exceeded the freight originally agreed to be paid to the
Plantagenet by the sum of 11. lis, 7cf., which sum the plaintiff had
paid.

7. The warehouse-rent at Bermuda for the whole cargo was 2i6/.
145. 8c?., a proportion of which, viz. 10/. 6s. 6rf., had been paid by the
plaintiff in respect of his bacon, of which amount, part, viz. 6/. Ifo.
6c/., was so paid in respect of the part of the said bacon so sent for-
ward by the Magnet and the Surprise, and 3i 10^., the remainder
thereof, in respect of the part of the said bacon so sold as aforesaid.
The expenses of the surveys held upon the cargo at Bermuda in order
to ascertain its state, and to determine what should be sent on and
what sold, amounted to the sum of 8Z. 14«., a proportion of which,
viz. the sum of 75., the plaintiff" had paid in respect of the said bacon
sent forward by the Magnet and the Surprise as aforesaid, and 2d, in
respect of the part so sold as aforesaid. The sum of 16Z. 85. was also
paid at Bermuda for cooperage of the goods re-shipped, a proportion
of which, viz. the sum of 135., the plaintiff had paid in respect of
the said bacon, of which sum of 135., part, viz. the sum of 12*. 9ci,
was so paid in respect of the part of the said bacon so sent forward
as aforesaid, and 3rf. in respect of the bacon so sold as aforesaid.

8. It was admitted that there was no constructive total loss of the
bacon.

9. The plaintiff sought to recover from the defendant under the
«aid policy the difference between the amount of the freight by the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 298^

Flantagenet and the sum total of the freight of the Magnet and Sur-
prise, and the shipping charges, viz. IZ. 12^. Id., and also a r^ooA
♦proportion of the other three items of expense incurred in *•
respect of the cargo by reason of the vessel putting into Bermuda,
and the transhipment of the cargo.

10. It was also admitted, that, down to the date of the policy in
this case, it was the custom of underwriters to pay charges on cargo
of the nature of the items the subject of this case, except cooperage,
under policies in the form of the policy in this case, under the name
of " particular charges."

11. The defendant contended, that, under the clause in the margin
of the policy, "warranted free from average, unless general, or the
ship be stranded, sunk, or burnt," the Plantagenet not having been
stranded, sunk, or burnt, and it being further admitted, for the pur*
pose of this case, that none of the above items of claim were general
average charges, he was not liable for any of the items sought to be
recovered by the plaintiflF.

12. The plaintiff contended, that, under the above circumstances,
the amounts so claimed by him were not within the warranty by the
said clauses, but that the defendant was liable to make them good.

IS. The court was to be at liberty to draw inferences of fact in the
same way as a jury would : and the questions for their opinion were, —
first, whether the before-mentioned four items, or any part and which
of them, were within the said warranty clause of the said policy, —
secondly, whether the plaintiff was under the circumstances of the
, case entitled to recover the said four items, or any and which of them,
fiom the defendant.

Quain, for the plaintiff. — The policy is in the ordinary form, with
a warranty in the margin "free from average, unless general, or the
ship be stranded, sunk, or burnt." If the expenses in question con-
stitute ^average loss within that warranty, the plaintiff's claim r»295
feils, unless that they are recoverable under the clause enabling *-
the assured, their factors, servants, or assigns, '* to sue, labour, and
travel for, in, or about the defence, safeguard, and recovery of the
said goods and merchandises, or ship, or any part thereof," &c. " This
clause," savs Mr. Arnould (1 Am. on Sh. 81, 2d edit.), "was intro-
daced to obviate a notion which appears at one time to have prevailed,
that, if the assured, after a loss which threatened the total destruction
of the property insured, were, either by himself or his agents, to take
active measures for its recovery or restoration, he would thereby lose
the right to abandon which he might otherwise have exercised. The
object of this clause, therefore, is, to permit the assured in such cases
to take every measure for the recovery of the property, without waiv-
ing his right of abandonment, and also to bind the underwriters to con-
tribute, in proportion to the amount of their several subscriptions, to
reimburse the assured for the expenses which he may thereby have
incurred." The case which gave rise to this question is that of The
Great Indian Peninsular Railway Company v. Saunders, 1 Best k
Smith 41 (E. C. L. R. vol. 101), in error, 2 Best & Smith 266 (B. 0.
L. B. vol. 110), where the Court of Queen's Bench, and afterwards the
court of error, held, that, where goods are insured by a policy of ma-
rine insurance in the ordinary form, the expression " warranted free

298 BOOTH t;. GAIR. M. T. 1863.

from particular average" is not confined to losses arising from injury
to or deterioration of the goods themselves, bat is equivalent to a
stipulation against total loss and general average only, and consequently
includes expenses incurred in relation to the goods. That case» it is
submitted, does not decide this. The circumstances there were pecu-
liar. The vessel having become disabled, and incapable of repair, the
*2961 S^^^^ 0^^^ rails) were sent back to their port of departure,

-■ *and there taken possession of by the plaintifib, and re-shipped
undamaged on board other vessels, and ultimately arrived in safety at
their destination. Here, however, the vessel put into a port of refuge
in the course of the voyage, and the expenses now sought to be re-
covered were incurred in unloading the cargo and transhipping such
of it as was capable of being carried on. Erie, C. J., in delivering
the judgment of the court of error, says : '* It is certain that the plain-
tifl& cannot recover here as for a total loss of the goods, seeing that the
goods were restored to them in specie, and forwarded by them to their
place of destination, where, so far as any sea-damage is concerned,
they may have received full value for them. But Mr. James ably argues
that the plaintiffs are entitled to recover this money, not as compen-
sation for loss of the goods within the general language of the policy,
but as the expense of forwarding them to their destination in other
vessels, under what has been called ' the labour and travel clause,'
which empowers the assured to sue, labour, and travel to save the
thing assured from impending loss. The substantial ground, how«
ever, on which I decide this case, is entirely beside his able argument.
The expenses that can be recovered under the suing, labouring, and
travelling clause are expenses incurred to prevent impending loss
within the meaning of the policy. Now, here, the goods were givea
up to the plaintiffs in perfect safety : and the question is, were these
expenses incurred to prevent a total loss ? Had the owners a rights
when the goods were given into their possession, to turn the transaction
into a total loss? Certainly not: for they had the goods in specie,
and consequently that 825/. lis. Id. had no reference to suing, labour-
ing, or travelling in order to prevent such a loss." There was no
*2971 ^^^^ ^^ ^^^^ impending there at the time the shippers took

^ ^possession of the rails. But here the goods were of a perish-
able nature. When landed at Bermuda, it was found that a large per*
tion of the oargo, including a portion of the bacon the subject of this
case, could not profitably be carried on, and it was accordingly sold ;
the rest, though partially damaged, being sent on to its destination. It
must, since the case of Balli v. Janson, 6 Ellis & B. 422 (E. C. L. R.
vol. 88), be conceded that there cannot be a constructive total loss of
ptrt of the subject of insurance under such a policy as this ; though,
if there had been here a total loss of the part sent on, there would
have been a total loss of the whole. The expenses claimed under the
.suing and labouring clause must, no doubt, be such as are incurred in
protecting the underwriters from an impepding peril for which they
would be responsible under the policy. If, therefore, a total loss was
possible before the arrival of the goods at their destination, the
expenses in question were properly incurred in forwarding them. The
defendant must contend that the risk was over at Bermuda. That,
kawever, is not so : the master was bound to tranship and send the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 297

goods OD. In Phillips on InsuraDce, vol. 2, p. 464, § 1777, this caao
is put: — "Sappose the oaseof an impending total loss of articles
insured free of average, and expenses incurred to avert it, — are these
expenses within the exception, and to be borne by the assured ? or
are the underwriters liable for them, on the ground that they were
incurred to prevent a total loss for which they would have been
liable ? In the case of hides insured free of average, and sunk near
Nieu Diep, the assured claimed reimbursement of the expense of
recovering the hides, under the clause authorizing him to sue, labour,
and travel for the safety of the property at the expense of the under- '
writers. The underwriters were held not to be liable in that case, on
the ground that they were not liable for a *total loss of a part r^ogg
of the hides insured, this being the only total loss that was '-
impending in that case, as above stated. But Mr. Justice Livingston,
in giving the opinion of the Supreme Court of the United States,
said, — ' The parties certainly meant to apply this clause only to the
case of those losses or injuries for which the insurers, if they had hap-
pened, would have been responsible. The underwriters not being
answerable for the principal [impending] loss, cannot be so for the
expenses in recovering the property :' Biays v. The Chesapeake Insur-
ance Company, 7 Cranch 416. This distinctly implies, that, if a total
loss of the whole subject insured had been impending, and the
expenses had been incurred to avert it, the underwriters would have
been liable. But the case is not a positive, direct authority to this
point Mr. Benecke says, — Princ. of Indem. in Ins. 8th London edit,
of 1824, p. 880, — 'As by the salvage of goods insured free of parti-
cular average, from shipwreck, &c., a total loss is prevented, which
would have fallen upon the underwriter, it seems obvious that the
salvage charges must be borne by the underwriter, although the
degree of average sustained by the goods has no influence upon him.
In a similar manner, when a cargo of corn, &c., arrives damaged at
an intermediate port, the charges not only of warehousing, but also of
drying and preserving the corn, must fall upon the underwriter,
because thereby prevented becoming a total loss at his charge.'"
(Btlbs, J. — Suppose a cargo of a 1000 ton ship, the ship being disa-
bled in the course of the voyage, were transhipped into two vessels
of 600 tons each, and one of the two was totally lost, — would that be
a total loss of the half?] Under such a policy as this, it is submitted,
it would It will be contended on the other side that the suing and
labouring clause cannot apply unless the goods are in peril of perish-
ing totally *at the very time the expenses are incurred. That, r^ooo
however, is a fallacy. In Phillips on Insurance, § 1774, it is ^
said: "The exoeptbn of loss, like the other provisions of the polic]jr,
has Teferenoe to the amount at risk at the time of the loss, whether it
he more or less than that at risk before or afterwards. Lord Kenyoa
aoquiesced in this rule applied to the part of the full cargo which had
•been taken on board when the loss occurred : Bohl v. Parr, 1 Esp. N.
P. 6. 446. So, after a part of the cargo had been landed, the exoq>-
tio&4xf loss under 6 per oent was held, in Maryland, to apply to the
amoaot atiU Tomaining at risk : The Maryland insurance Company u,
Bosley, 9 OsU & Johnson S87. It has been remarked thai a total loss
tf M JBcmonuidaa Mfticle dnsured tree from partial loss icanaot take

S06 PEARSON v. COM. UNION ASSURANCE CO. M. T. 1863.

aeattle a ship if neoessarj, and regulations as to fire and ligbt, — none
of which are available for vessels whilst lying in the river, though
equally available to the graving-dock adjoining the Yictoria Docks.
There was also evidence that the vessel's detention in the river was
longer than was necessary for the replacing of her paddles and paddle-
wheels: and it was surmised that there was no intention on the part
^f her owners to take her back to the Yictoria Docks, as she had been
laken up for the conveyance of French troops to Mexico.

On the part of the plaintift* it was proved that it was a usual thing
io remove the paddles of large steamers, in order to enable them to
go into dry*docks, none being wide enough at the entrance to receive
♦8071 *^^®"^ without so doing ; and witnesses were called who stated
'' that the time employed in restoring them in this instance was
not unreasonable, and that it could be done at a very much less
expense at the place where the Indian Empire was moored in the
river than in the Victoria Docks. Officers from some of the principal
fire-insurance offices in London were also called, who stated that they
considered the risk from fire to be greater in a crowded dock than in
.the Thames, and that there was no difference in their premiums.

The jury having returned a verdict for the plaintiflffor the amount
^elaimed,

Lushj Q. C, on a former day in this term, obtained a rule nisi to
«nter a nonsuit, on the ground that, upon the true construction of the
policy, the ship was not covered at the time of the loss, — the court to
be at liberty to deal with the evidence as they might deem it adrais-
■ible or otherwise. He submitted that the essence of the policy was,
that the vessel should during the whole time the risk attached be
lying ia the Yictoria Docks or in a dry -dock : and that the defendants
never consented to undertake the risk sought to be imposed upon
them by the plaintiff^ which from the circumstances proved at the
trial was verv much greater than any that the vessel could run if she
kad remainea in the Yictoria Docks.

Bovill, Q. C, and Watkin Williams, on a subsequent day showed
eause. — The liberty to go into dry-dock was clearly not confined to
the graving-dock adjoining the Yictoria Docks. If that had been
intended, the policy would have stated so in terms. It was found to
be not wide enough to receive this vessel. Lungley's dry-dock was
the only one within a convenient distance which would accommodate
*3081 ^^^ ' ^^^ ^ ^^^^ *'^^ accordingly went. The evidence showed
^ that it was the invariable custom when large steam vessels are
docked to remove the lower part of their paddle-wheels ; and it was
aIbo proved that it was the usual course to replace them at moorings
in the river near to the dock ; and that, in this instance^ the expense
^go doing would have been greatly enhanced if the vessel had been
l^ken into the Yictoria Docks for that parpose. It being lawful, then,
for the vessel to go to a dry-dock out of the Yictoria Docks, it follows
tfUi the poliey proteoted her in going to and returning from snch
dlrj^dook, and during the time necessarily and reasonably employed
in the transit •

liMh, Q. C, Kaniak^, Q. C, and Sir Q. Homgrnan, in support ef
the rule«— The defendants did not by this poU(^ consent to undertake
any river risk. Tke iaaoranoe is confined to the ship whilst lyin^; in

COMMON BENCH REPORTS. (16 J. SCOTT. N. S.) 808

tbe Yictoria Docks or in the graving-dock adjoining. Assuming thai
she had permission to go out of the Yictoria Docks to a dry -dock else-
where, the risk was at all events confined to the period of her stay iq
the dry-dock and to the time necessarily consumed in going to and
returning from such dry-dock. And she was bound to return to the.
Yictoria Docks to get her paddle-wheels replaced, and could not law-
fully remain in the river for that purpose at the risk of the defend-
ants. These are the three propositions upon which the defendants
rely to absolve them from liability upon this policy.

Beading the policy with the knowledge (which all parties must be
assumed to have had, — Barges v. Wickham, 88 Law J., Q. B. 17)
that there was a graving-dock adjoining and for all practical purposes
forming part of the Yictoria Docks, and which neither party knew to
be of capacity insufficient to admit this vessel, *the necessary r»oAa
inference is, that that was the dry dock contemplated ; for, it is '-
obvious that the object of examining and repairing the ship's bottom
would be equally well attained in a pontoon-dock as in an ordinary
dry-dock. [Bovill, Q, C. — There was no evidence that either the
plaintiff or the company knew that there was a graving-dock con-
nected or communicating with the Yictoria Docks.] It is a fact a9
notorious to all persons using the Yictoria Docks as is the existenee
of the river Thames. The limited liberty reserved to the owners of
the vessel to light her boiler-fires once or twice during the carrency of
the policy, excludes the notion that she was to have her steam up to
enable her to go out to a dry-dock elsewhere. If she was to go out
at all, she might go to any dry-dock in the United Kingdom. The
plaintiff resided at Hull. Was it intended that the vessel should go
there to be docked 7 Every form of marine policy includes fire as
one of the perils insured against. Under this policy, the plaintiff
would not have been protected against damage from collision or any
other sea peril : and, the common marine policy covering accidents
from fire, this policy would be wholly unnecessary upon such a coor
struction. [Erlb, C. J.— The exclusion of the lighting of her fires
for the parpose of getting up steam for a sea voyage to get to a con-
venient dry-dock, still leaves it compatible with the language of the
policy that liberty was reserved to the owner to take the vessel to
any dr^-dock in the Thames.] The only risks contemplated were
dock risks. The language of the policy excludes river navigation
quite as much as sea navigation. Collision is a risk which is perhaps
more imminent in the river than at sea. The evidence showed the
great disparity of risk from fire in the Yictoria Docks and out. Ii^
the docks, a large and eiBoient staff of watchmen, firemen^ police^ and
'carpenters, is alwayrat hand to prevent or to extinguish con- rssi a
flagratious. These precautions and the applianoes which are ^
available in the Yictoria Docks do not and qanoot exist in lbs
Thames. Besides all these, there are most strlogeot regulations as t»
fires and Iif^ts on board vessels U the dooks^ whioh sie lapst rigi^y
eofoioed. These matters are most important^ and ^e aU takeo iota
acoount in estimatijig the risk to be undertsken, wd aicertaiainff ths
amosnt qt premium to be charged* The vesiel imglbt aod ought (a
have been t^wed baek to the Yiotoria Pooka fiur tbe poxpose of having
her paddle-wheels repUced thoxcu The oulj r^^aon «s8i(^ued by the

310 PEARSON t;. COM. UNION ASSURANCE CO. M. T. 1863.

plaintiff for not having done so, was, that such a course would have
been attended with increased expense, and that it was usual to do this
in the river. But the course of business as to vessels not insured
under policies of this sort can have no application to the existing
•state of things here. It raay be that the time consumed in restoring
the paddle-wheels in the river was not unreasonable or excessive.
But it is submitted, that, if the vessel was at liberty to quit the Vic-
toria Docks at all, she was only protected during the time employed
in her transit to and from and in her stay at the dry-dock, and that
she at all events was not protected while in the river for an unneces-
sary time for those purposes. Cur. adv. vult.
Eble, 0. J., now delivered the judgment of the court :(a) —
This was an action on a policy by which the ship .was insured
against loss by fire during three months. The ship was described to
be lying in the Victoria Docks, with liberty to go into dry -dock, and
♦3111 ^ liglit her ♦boiler-fires once or twice. She was burnt within
J the three months : and the question before us has been, whether,
at the time she was burnt, she was covered by that policy.

The circumstances which existed at the time the policy was made
relative to its construction, and the circumstances attending the loss
relative to the application of that construction to the loss, appeared to
be as follows : — The ship was lying in the Victoria Docks, and was to
be repaired in a dry-dock. The Thames Graving Dock, in whicb
ships were lifted by pontoons, so as to be dry, was adjoining to the
Victoria Docks : but the width of this ship prevented her from going
into this pontoon-dock. Lungley*s dry-dock, distant about two miles
up the Thames from the Victoria Docks, was the nearest that could
receive the ship conveniently ; and, for the purpose of entering there,
it was necessary to remove the lower half of the paddle-wheels. This
was done in the Victoria Docks ; and the parts of the wheels were
deposited in a barge there, and the ship was towed up to Lungley'a
dock, and the necessary repairs were nearly completed there in the
course of two months. Then the ship was towed down to the gov-
ernment buoy off Deptford, within six or seven hundred yards of the
Victoria Docks, and moored there for the purpose of having the parts
of the paddle-wheels replaced there. The utmost despatch was used
in performing this work ; and it was nearly completed in ten days.
While this was being done, other work was in progress in order to
make the ship fit for sea ; but there was no delay on this accoant,
and nothing turned on this work. Then, the ship was burnt at her
moorings.

' The evidence showed that it was usual with the great ship-builders
in the Thames for ships of great width which had taken off the half
*8121 ^^ ^^^^^ paddle-wheels *for the purpose of going into dry-
-' docks, to lie in the Thames after coming out, while the parts
of the paddle-wheels were being replaced ; and that the mooting of
the plaintiff's ship in the river while this process was performed was
according to the course usually followed by them in respect of ships
whose paddle-wheels had been in like manner and for the same purpose
removed. The evidience further showed that the plaintiff's ship might
have been taken back into, the Victoria Docks without being moored

(a) Tht OMM WM wguod MoN Brie, C. jr.» WiUiamf, J., BjIm, J., and Keating, J.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 312

in the Thames, and that the* paddle-wheels might have been replaced
in those docks, but that the expense of the work in the docks would
have been four times as great as it was in the river.

It was said that the work could be more conveniently performed in
the Thames than in the docks: but this was not explained to have
any meaning beyond the expense.

The evidence further showed that in the Victoria Docks there were
very careful precautions to prevent damage by fire, — watchmen at all
hours, a numerous fire-brigade always ready, policemen and other
servants of the company trained to the use of fire-engines, and car-
penters ready to scuttle a ship on fire, together with an ample water
supply from stand-pipes in many places; while, in the river, it was
said that there were only three floating-engines placed at considerable
distances from each other, and that nearly an hour elapsed between
the breaking out of the fire and the arrival of the first of these
engines.

There was evidence, that, in offices of great importance, such as the
Sun and the Phoenix, the premium was the same whether the ship lay
in the river or a dock. But, in these offices, the same rate had been
continued from a far distant time ; and the defendants objected, with
good reason, as we think, that their *rights under this contract r#Q-i o
were not to be affected by the rights of parties under other *■
contracts with other companies.

These being the facts, the defendants contended that the ship was
not covered by the policy at the time of the loss, on three grounds, —
first, because the ship was not lying in the Victoria Docks, or in the
dry-dock adjoining thereto, — secondly, because the ship was not in
any dock, — thirdly, because the ship was not in a dock nor in transit
from a dock to a dock within the meaning of the policy.

As to the first and second grounds, the defendants contended that
the words *' lying in the Victoria Docks, with liberty to go into dry-
dock," confined the risk either to the Victoria Docks and the dry -dock
adjoining thereto, or to the Victoria Docks and some dry-dock, and
excluded the risk in the transit from one dock to another. But, in
respect of these grounds, we think that the defendants failed.

As to the first ground, the words of the policy do not express that
the liberty is confined to any particular dry -dock : and, although it is
probable that both parties expected that the pontoon-dock would be
used, and neither party knew that the relative admeasurements of the
ship and that dock would prevent the adoption of that course; still
effect is to be given to the words in their ordinary meaning ; and the
liberty to go into dry-dock is unrestricted in expression. If the
defendants intend to confine the liberty to the pontoon-dock only,
they must express their intention more clearly.

As to the second ground, if the plaintiff had liberty to resort to
any convenient dry-dock, we think the policy covered the ship while
the plaintiff used the liberty so given to him thereby. The descrip-
tion is in the nature of a condition: the defenaants insure for
*tbree months, provided the ship is in the situation mentioned r^oi^
in the policy, that is, in either dock or in the necessary passage '■
from the one to the other.

We are aware, that, under this construction, the plaintiff would be

S14 PEARSON ». COM. UNION ASSURANCE CO. M. T. 1863.

tninsnred as to all risk from collision or the like in the river during
transit, and that the defendants would take an undefined liability in
the river if the plaintiff might choose a dry-dock at an undefined
distance from the Victoria Docks. But, notwithstanding these con-
siderations, we are brought to the construction above stated, and
decide against the defendants on the first two grounds on which they
relied.

As to the third ground above stated, we think that the defendants
are entitled to succeed. We think that the ship was not in a dock,
nor in transit from a dock to a dock within the meaning of the policy.
We consider that the risk contemplated by both parties was sub-
stantially the risk of fire in a dock : and, although the defendants are
held, by implication, to have undertaken so much risk in the river as
was essential for the exercise of the liberty of transit from dock to
dock; yet this risk in the river is limited to that transit, and does not
in our judgment extend to any time during which the ship stopped
in the river not for the purpose of that transit. A few hours were all
that would have been required for that purpose. The delay of ten
days was for the purpose of replacing the paddle-wheels; and there
was no proof that they could not have been replaced as well for the
ship, although with more expense, in the docks where they were taken
off and were left till the ship returned. The risk in the river appears
much greater than in the docks, by reason of the absence of many
appliances to secure against fire which were available in the docks.
♦S151 ^^^ plaintiff placed much reliance on the fact above *stated,
■' that it was usual with the great ship-builders, after repairing
fluch ships as the plaintiff's, to replace the paddle-wheels in the river.
But the question here does not depend on tne course of business usual
with ship-builders, but upon the contract of these parties. If a ship
is prepared for sea iu the dock of a ship-builder in all respects except
the paddle-wheels, the fixing of which is of necessity postponed in
order that the ship may pass oht of the dock, it might well be the
best and cheapest course for the ship to lie at a convenient place in
the river to receive those wheels, and then proceed on her voyage.
Time and money would probably be wasted by sending her into
another dock. But, under this contract, the insurance is confined by
its express terms to the docks : and, though it is extended by implica-
tion to the necessary passage from one dock to the Other, there is no
implication that it should be made to extend to lying in the river for
any purpose of repair. The paddle-wheels were not essential for the

Eurpose of moving the ship into the docks. The same power which
rought her to her moorings could have taken her on to the docks.
^ According to our* construction, the ship was not covered unless she
passed directly from the one dock to the other. She did not so pass,
out was delayed ten days : and this delay was not owing to any cause
connected with the passage. It follows that during those ten days
the defendants were not liable.

The rule, therefore, for entering a verdict for the defendants, or a
nonsuit, must be made absolute. Bule absolute for a nonsuit

COMMON BENCH BEPOBTS. (15 J. SCOTT. N. S.) 311

♦ROSEWAENE v. BILLING. Nvo. 19. [*31d

It is DO aaswer to an action for money paid at the request of the defendant, to plead that tiM
noaej was paid in respect of losses on time bargains for mining shares which the plaintiff had
mad« as broker for the defendant with third persons.

This was an action for money paid by the plaintiff for the defend-
ant at his request, and for money found due on accounts stated.

Second plea, — that the plaintiff was and is a mining share agent,
and that the defendant retained and employed the plaintiff as such
agent, after the passing and coming into operation of a certain act of
parliament passed in the session of parliament held in the eighth and
ninth years of her present Majesty, intituled "An act to amend the
law concerning games and wagers" (8 & 9 Vict. 109), to make and
enter into on bishalf of the defendant, and the plaintiff then in pursu-
ance thereof made and entered into for the defendant, with certain
persons whose names were to the defendant unknown, certain con-
tracts by way of gaming and wagering, contrary to the form of the
said statute, that is to say, certain watering contracts under the sem-
blance of pretended sales to the defendant by such persons respecting
the market- price and value of certain shares in a certain mine called
the Wheal Harriet on certain days then to come, whereby, under
pretence of contracts, the said plaintiff agreed with such personS|
being the persons with whom the plaintiff so contracted for the
defendant, that, if the price and value of the said shares should be
lower on the said future day than on the respective days when the
said wagering contracts were respectively made as in that plea was
mentioned, he the defendant should receive from the said persons the
amount of the difference between the value of the said shares respect-
ively on the several days when the same wagering contracts were
respectively made, and the market value on the *said future r*Qi»t
days ; and, if the price and value thereof should be higher on ^
the said future days than on the respective days when the said wager-
ing contracts were respectively made as aforesaid, the defendant should
pay to the said persons respectively the amount of the difference
between the value thereof on the said days on which the said wager-
ing contracts respectively were made as aforesaid and the market
value thereof on the said future days : that it never was intended that
any shares should be actually bought by the defendant or sold or
delivered by such persons in pursuance of the said wagering contracts
as aforesaid or otherwise, (W he the plaintiff always well knew ; but that
such differences alone should be received or paid by the defendant as
aforesaid : that the money so paid by the plaintiff was paid in settling
and discharging differences which had become payable to the said
persons upon the said wagers and contracts so made by the plaintiff
as such agent as in the plea aforesaid, he the plaintiff having as such
mining share agent, and according to the custom among mining share
agents, made the said wagers and contracts in his the plaintiff's own
name as a principal, without disclosing the name of the said defend-
ant : and that the said accounts were stated by the defendant with the
plaintiff of and concerning the said money so paid as aforesaid, and
not otherwise.

317 ROSBWARNE v. BILLING. M. T. 1863.

The plaintiflF demurred to this plea, the ground stated in the mar-
gin being, '* that the said contracts are not illegal, and that the said
plea does not aver that the defendant did not request the plaintiff to
pay the money claimed." Joinder.

itQ'tcri H. J. Hodgson^ in support of the demurrer.(a) — The *plea
-I attempts to raise a defence to this action for money paid, on
the ground that the money was paid in respect of time-bargains,
which are declared null and void by the 18th section of the 8 & 9
Vict. c. 109 ; but it does not traverse the allegation that the money
was paid at the request of the defendant^ and therefore the defendant
must contend that the contracts in respect of which the money was
paid were illegal. There is a material distinction between a contract
which is simply void, and one which is declared to be illegal : Gye r.
Felton, 4 Taunt. 876. It is not, therefore, any answer t(5 this action
to say that the contracts in respect of which the money was paid were
void and incapable of being enforced as between the parties to them.
In Jessopp V. Lutwyche, 10 Exch. 614, to a declaration for money
paid and on accounts stated, the defendant pleaded that the causes of
action accrued aflber the passing of the 8 & 9 Vict. c. 109, under and
by virtue of certain contracts made between the plaintiff and the de-
fendant by way of gaming upon the market-price of shares ; and it
was held, on demurrer, that the plea was bad. .Parke, B., in the course of
the argument, said, — "The plea does not negative the fact of a third
♦«ll Q1 P^^^y having won the money , and that the *defendant request-
J ed the plaintiff to pay the amount over to him. The plea,
therefore, is consistent with a state of facts which entitles the plaintiff
to recover :" and in giving judgment he said : " It is consistent with
the plea that the defendant requested the plaintiff to pay over the
money for him to a third party, and that in fact it was so paid; in
which case the defendant has no defence." In Fitch v. Jones, 5 Ellis
& B. 238 (E. C. L. R. vol. 85), to an action on a promissory note the
defendant pleaded that he made the note and delivered it to the en-
dorser in payment of a bet on the amount of hop-duty, and that the
plaintiff took it without value. At the trial it was proved that the
note was made and given to the endorser for the bet: and the judge
left it to the jury to say whether there was value for the endorsement,
telling them that the burthen lay on the defendant to prove that there
was none. It was held that this was no misdirection; for that, though
proof that a negotiable instrument was affected with fraud or illegality
in the hands of a previous holder raises a presumption that he would
endorse it away to an agent without value, and consequently calls on
the plaintiff for proof that he gave value, the presumption does not
arise when the previous holder merely held without consideration ;

(a) The points marked for argument on the part of the pluntiff were as follows :—

** 1. That' the plea does not show that the said contracts alleged bj the plea to hare been made
bj the plain'tifif as the defendant's agent with divers persons, were illegal as alleged :

« 2. That the plea does not allege thai it was agreed between the plaintiff and the defendant
that shares should not be actnallj boaght by the defendant^ or sold or delirered bj the said
persons, in pnrsnanee of the sai|.d contracts :

" 3. That the plea admits that the money paid by the plaintiff was paid in settling and dis>
tharging differences which had become payable to tiie said persons nnder the said contracts,
bat does not deny the allegation in the declaration that the same was paid by the plaintiff at
the defendant's request."

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 319

and tTiat a bet, thoagli void, and therefore no consideration, was not
illegal^ so as to raise a presumption that the endorsement was without
value. "It is clear," says Lord Campbell, "that, when there is ille-
gality* or fraud shown in a previous holder, a presumption that there
is no consideration for the endorsement does arise ; for, the person
who is guilty of illegality or fraud, and knows that he cannot sue
himself, is likely to hand over the instrument to some other person to
sue for him. It is not properly that the burthen of proof as to there
being consideration is shifted, but that the defendant, on whom the
burthen *of proof that there was no consideration lies, has by r*QOA
proving fraud or illegality in the former holder raised a primfi '-
presumption that the plaintiff is agent for the holder, and has there-
fore, unless that presumption be rebutted, proved that there was no
consideration. But no such presumption arises where there was in
the former holder a mere want of consideration, without any illegality
or fraud." [Erle, C. J. — There is no illegality in betting on a race ;
but the winner cannot sue. Jessopp v. Lutwyche seems strongly in
the plaintiff's favour; there is no distinction between the two cases,
save that there the wagering contracts were made between the plain-
tiff and the defendant, and here between the plaintiff and third per-
sons for the defendant. Williams, J. — This plea is hardly consist-
ent with the suggestion in Jessopp v- Lutwyche, that the money may
have been paid at the defendant's request after the transactions were
over. Erle, C. J. — Whether the request to pay was before or after
the loss was ascertained, it must have the same obligatory force.
Knight V. Cambers, 15 C. B. 562 (E. C. L. R. vol. 80), is exactly the
same as Jessopp v. Lutwyche.(a) It was there held that it is no an-
swer to an action for money paid by the plaintiff for the defendant's
use, at his request, that the money was paid in respect of losses on
wagering contracts made void by the 8 & 9 Vict. c. 109, s. 18. Maule,
J., says: "Assuming the original contracts to have been void, there
is nothing to prevent the plaintiff from recovering money afterwards
paid by him at the defendant's request."] These authorities show that
the plea is clearly bad.

Lopes, contrii.(i) — It may be conceded that a plea *that the r*Q2i
money which is sought to be recovered was paid upon a con- ^
tract which was merely void, would afford no answer if the money
was paid at the defendant's request. The plea in the present case,
however, is not like those in Knight v. Cambers and Jessopp v. Lut-
wyche : it states not merely that the money was won upon a void
contract, but that it was so won to the knowledge of the plaintiff. The
18th section of the 8 & 9 Yict. c. 109 enacts that ^' all contracts or
agreements, whether by parole or in writing, by way of gaming or
wagering, shall be null and void:" and it goes on to enact ''that no
suit shall be brought or maintained in any court of law or equity for

(a) Jessopp V. Lutwyche was decided on the 5th of Deeember, 1864; Knight v. Cambers on
tli« 23d of Jannary, 1855. And see Koigbt v. Fitob, 15 C. B. 566 (£. C. L. R. Tol. 80).

(&) The points marked for argument on the part of the defendant were as follows : —

** 1. That the money paid by the plaintiff on behalf of the defendant, being alleged in the
■eeoad plea to have been paid on a contract which the plaintiff knew to be roid, was money paid
bj the plaintiff in his own wrong :

"2. That this being sabstantially a snit to reeorer a snm of money aUeged to be won upon
A wager, is an action which cannot be brought or maintained."

321 ROSEWARNE v. BILLING. M. T. 1863.

recovering any sum of money or valuable thing alleged to be won
upon any wager, or which shall have been deposited in the hands of
any person to abide the event on which any wager shall have^ been
made." What is the subject of this action ? Why, the money won
by the third person upon the illegal bargains made for him by the
plaintiff. If such an action as this may be maintained, the enactment
of the gaming act may always be evaded. [Erlb, C. J.— It is quite
clear that no action will lie to recover differences upon time-bargains,
but the cases referred to are express that money paid at the request
of the defendant, though for the purpose of paying money so won,
may be recovered.] Neither in Jessopp v. Lutwyche no^ in Knight
♦3921 ^' C^"^^®^s w^s there any allegation in the plea that the *plain-
J tiff was a party to the illegal contracts. [Erle, C. J. — The
judgment in both cases is wholly beside that.]

Hodgson was not called upon to reply.

Erlb, C. J. — I am of opinion that our judgment upon this demurrer
must be for the plaintiff. He sues the defendant for money which he
alleges he paid for the defendant at his request. The answer the
defendant sets up, is, that the money became due by reason of certain
wagering contracts made by the plaintiff for the defendant with cer-
tain other persons since the passing of the 8 & 9 Vict. c. 109. Now,
the law as to gaming contracts, is, that all such contracts are null and
void, and no action can be maintained upon them. But they are not
therefore illegal. The parties making them are not liable to any
actions or to any penalties. Here, the plaintiff paid the differences
according to the result, and at the defendant's request. I am clearly
of opinion, that, if a man loses a wager, and gets another to pay the
money for him, an action lies for the recovery of the money so paid.
In Jessopp V. Lutwyche and Knight v. Cambers, the Court of Exche-
quer and this court both say that the plaintiff was entitled to judg-
ment on the ground that the money was alleged to have been paid at
the request of the defendant, and that there was nothing to show that
there was any illegality. Those cases are in point to show this to be
a bad plea. I should incline to think, that, if one requests another to
make a wagering contract on his account and pay the loss if loss hap-
pens, that would be a continuing request to pay until revoked. If
the party were a broker who by the usage of the share-market was
bound in all events to pay, it might be a question whether the prin-
cipal could be allowed to rescind. It will be time enough, however,
♦8231 **^ decide that question whenever it shall arise. For the de-
^ termination of the matter in hand, it is sufficient to say that
there is nothing upon the face of this plea to exclude the notion of a
subsequent request to pay.

Williams, J. — I am also of opinion that this is a bad plea. It is
impossible to distinguish it upon any solid ground from the pleas
which were held bad by the Court of Exchequer in Jessopp v. Lut-
wyche, 10 Exch. 614, and by this court in Knight v. Cambers, 15 C.
B. 662 (E. C. L. B. vol. 80). In this plea certainly it is alleged that
the money so paid by the plaintiff was paid in settling the di&erences
which had become payable to the persons with whom the plaintiff
made the wagering contracts, he the plaintiff having as such mining
share agent, and according to the custom among mining share agents.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 328

made tbe wagers in his own name as a principal, without disclosing
the name of the defendant : but I do not think that at all differs the
case from those to which I have alluded. . It is quite consistent with
this plea that the plaintiff, having made the contracts in his own
name, and being by force of the statute able to resist payment of the
money, might have been minded to resist but for the defendant's re-
quest to him to pay. There is nothing in the plea to negative the
suggestion that the payment was made after the loss at the defendant's
request ; and, if so, the defendant is clearly liable to repay it.

Keatinq, J. — I am of the same opinion. The plea is perfectly
consistent with the plaintiff's having paid the money at the request
of the defendant, though both parties knew at the time that the con-
tracts in respect of which the payments were made could not be
enforced. Judgment for the plaintiff

♦SHAND and Another v. JOHN GRANT and ROBERT p^^qoa
GRANT. Nov. 18. L "^^^

Certain bales of cotton were consigned by merchants at Madras to London for the account of
their eerrespondents, the plaintiffi, who were merchants at Liverpool, under billi of lading haying
in the margin, pursuant to the course of business at Madras, a note of the measurement and tha
amount of freight On the ship's arrival, the plaintiffs' brokers sent the cotton to a wharf with «
copy of the hills of lading, another copy of the bills of lading being forwarded to the plaintiffs. Ao-
eerdlng to the ordinary practice, the wharfinger, on receiring the cotton, measured it, and sent
a note of the measurement to the defendants, who were the ship's brokers {one of them aleo being
tU owner). The defendants as brokers made out a freight-note, adopting the measurement from
the wharfinger's note, whieh in consequence of the swelling of the bales on the Toyage was con-
siderably more than the Madras measurement in the margin of the bills of lading. The freight-
note so made out was sent by the defendants to the plaintiffs' brokers, who, assuming it to be
correct, paid the amount, and received credit fur it in their account with their principals; and
the defendants settled the ship's accounts upon the supposition that all was right. The plain-
tiffs, on balancing their accounts with the Madras house at the end of the following year,
diseoveied for the first time that they had overpaid the defendants to tbe extent of 88^. 8«. Bd,, and
brought an action to recover it back : —

Held, that, the money having been paid under a mistake of fact, the plaintiffs were entitled to
recover it back /rom the ovmer of the ehip, but not as against the (too defendants^as ship's brokers,
who had settled accounts with the owner in the bon& fide belief that the payment had been
rightly made.

This was an action brought by the plaintiflTs, merchants at Liver-
pool, to recover back from the defendants, who were ship-brokers in
London, a sum of 88?. 85. 8c?. which was received by them in excess
of freight in May, 1881, under the following circumstances : —

The plaintiff's carried on business as merchants at Liverpool, under
the name of Shand & Co., and had a house at Madras some of the

Partners in which were different from those composing the Liverpool
ouse. In 1861, the Madras house shipped to London for account of
the Liverpool house (the plaintiffs) a quantity of cotton on board the
ship Comet, 0/ which the defendant John Grant was the sole ovmer. The
captain signed bills of lading at Madras which stated the cotton to be
deliverable in London on payment of freight "at the rate of 21 Ss,
per ton of 50 cubic feet, as per margin," — each bill of lading contain-
me a computation of the freight to be paid thereon, thus, — "100
bales, measuring 25 tons, 2 feet, at 2Z. 5s. per cubic foot— 56?. 7«. Sd." •

324 SHAND v. GRANT. M. T. 1863.

the aggregate amount of the four bills of lading (three of them were
for 200 tons each) being 394?. 125. 2d. The Comet arrived in the
*3261 ^^^^^^^*^ Docks in April, 1861. Messrs. Tetley & Co,, the
J *plaintiffs' brokers, sent the cotton to ScovelPs wharf, sending
at the same time one copy of the bills of lading to the wharfinger,
and another copy to the plaintiffs at Liverpool. The wharfinger,
according to the usual course of business, measured the bales on land-
ing, and delivered a note of the measurement to the defendants, the
brokers for the ship. Upon this measurement of the wharfinger the
defendants made out the freight-note, and sent it to Tetley & Co.,
who, not having the bills of lading before them, but relying on the
accuracy of the wharfinger's measurement, paid the amount, 483Z. 0«.
6(1, in May, 1861. The plaintiffs credited Tetley & Co. with the sum
80 paid, making no objection to the amount; and the accounts for the
voyage were wound up and settled as between the defendants as
brokers for the ship and John Grant as owner.

At the close of the year 1862, when the plaintifl& sent out their
account-sales to the Madras house, the latter discovered that a larger
amount of freight (by 88?. 8*. 3d,) had been paid for the cotton than
was warranted by the weights entered *in the margin of the bills of
lading. The excess was caused by the swelling of the cotton during
the voyage or on landing. The plaintiffs thereupon called on the
defendants to return the sum so overpaid. This the defendants
refused to do, on the ground that their accounts for the voyage were
closed and settled. The plaintiffs then brought this action.

At the trial before Erie, C. J., at the sittings in London after last
Term, in addition to the above facts, it was proved that the entries in
the margin of the bills of lading of the weights and amount of freight
had been made in accordance with a resolution of the Madras Chamber
of Commerce, which had been come to about twelve years ago, for the
*3261 ®^P^^^ purpose of *preventing disputes which constantly arose
^ from discrepancies between the shipping and the landing weights
of cotton. It did not, however, appear that the plaintiffs were aware
of this rule. There was no suggestion that either party had acted in
the matter otherwise than with perfect bona fides.

On the part of the defendants it was submitted that the plaintiffs,
having the bills of lading and the freight-note in their possession,
had the means of knowing what was the true amount payable for
freight, and, having made the payment with full knowledge or means
of knowledge of all the facts, and the defendants having settled their
accounts with the ship-owner before they had any notice of the
mistake, and in the bonfi fide belief that the payment had been
properly made, it was too late for the plaintif& to seek to recover
it back.

For the plaintiffs it was contended that the payment having been
made under a mistake of fact, it was inequitable to allow the defend-
ants to retain it ; and that the circumstance of the defendants having
settled their accounts as brokers to the ship at all events afforded no
drfence to the defendant John Grant, the owner, and that the record
might, if necessary, be amended by striking out the name of Robert
Grant.

His Lordship directed the jury to find for the plainti£& for the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 326

amount claimed, reserving leave to the defendants to move to enter a
nonsuit.

Luahj Q. C, on a former day in this term obtained a rule nisi
accordingly. — He referred to Holland v. Russell, 1 Best & Smith 424
(E. 0. L. K. vol. 101). There, A., as agent for a foreign owner,
entered into a policy of insurance on a ship in the usual form. At
the time of effecting the insurance, A. was in possession of a letter
hoxn the captain informing him that the ship had received injury,
♦which fact he, without any fraudulent intention to deceive, r*oo7
omitted to disclose to the underwriters. The ship was lost, ^
and B., one of the underwriters, paid to A. the amount of his insur-
ance; but, having subsequently become acquainted with the above
circumstances, brought an action for money had and received against
him to recover it back. A., before he was aware of B.'a intention to
dispute the policy, and acting bon& fide throughout, transmitted to
his principal the money he had received from the various under*
writers, with the exception of a certain amount for which he had
allowed the principal credit in a settled account, and of another
which, with the authority of the principal, he had expended in a suit
brought by him on behalf of the principal against C, another under-
writer, on the policy. And it was held, — ^first (in accordance with
the decision in Russell v. Thornton, 4 Hurlst. & N. 788, affirmed on
error, 6 Hurlst. & N. 140), that, in consec^uence of the concealment
from the underwriters of the fact stated m the captain's letter, the
policy was voidable at the election of the underwriters, — secondly,
that, A. being only an agent, of which B. was aware, and having,
without notice of B.'s intention to repudiate the contract, paid over to
his principal the amount received from the underwriters, B. was not
entitled to recover back from A. his amount of the insurance, — and,
thirdly, that there was no difference in this respect between the
money actually paid over by A. to his principal, and the moneys
which had either been allowed in account between them, or expended
in the suit against G.

Montague Smithy Q. C, now showed cause. — The plaintifl& are clearly
entitled to retain their verdict. The payment was made in the bonfi
fide belief that the demand was a just one, and in ignorance of the
*fact that the freight-note was based upon a measurement r^oog
different from that which was the measurement agreed co in '-
the bills of lading. It is usual among brokers to settle upon the
faith of the freight-note. The objection was taken as soon as the
mistake was discovered. Notwithstanding a notion which formerly
prevailed, in consequence of some dicta,(a) that, if the party paying
the money be guilty of laches, in not availing himself of the means
he possesses of ascertaining the true state of facts at the time, it is
now clearly settled by the cases of Kelly v. Solari, 9 M. & W. 64,
Bell V. Gardiner, 4 M. & G. 11 (E. 0. L. R. vol. 48), 4 Scott N. R. 621,
and Townsend v. Crowdy, 8 C. B, N. S. 477 (E. C. L. R. vol. 98), that,
where a party pays money under a mistake of fact, he is entitled to
recover it back, although he may at the time of the payment have
had means of knowledge of which he has neglected to avail himself.

(a) Sm BUbto V. Lnmley, S East 400, ud Ifilnet «. PnnoAS, B. 4 0. 071 (S, 0. L. B. vol.
IS), • D. 4 B. 781 (B. C. L. B. toL »>.

328 SHAND v. GRANT. H. T. 1863.

— * ■

Williams, J., in the last case, says: "No doubt, at one time the rnlo
that money paid under a mistake of fact might be recovered back,
was subject to the limitation that it must be shown that the party
seeking to recover it back had been guilty of no laches. But, since
the case of Kelly v. Solari, it has been established that it is not
enough that the party had the means of learning the truth if he bad
chosen to make inquiry. The only limitation now is, that he mast not
waive all inquiry." The fact of the brokers having paid over the
monev to the owner, makes no difference. Here, we have the owner
as a defendant on the record. What pretence can he have for retaining
the money ?

Lush, Q. 0., and Sir George Honyman, in support of the rule. — It
is not necessary to dispute the authority of any of the cases which
*3291 ^^^^ ^^ ^^^ money paid *in ignorance or mistake of facts
-I may be recovered back. But it is equall v clear, that, where
the payment has been made under a mistake of the party's legal
rights, or with an intention to waive all inquiry as to the facta or the
law, the money is not recoverable. The plaintifis, when they paid
the freight, or assented to the payment of it by their brokers, upon
the wharSnger^s measurement, had the bills of lading before them.
It may be that they did not know the legal effect of the note in the
margin of the bills of lading ; or they may have been unwilling to raise
the question. At all events, the action cleariy cannot be maintained
against the two defendants. Holland v. Busaell (which was affirmed
in the Exchequer Chamber, 82 Law J., Q. B. 297) is not to be dis*
tinguished from this case. If the court should think that the record
ought to be amended by striking out the name of Robert Qrant, it
will be upon the same terms, as to costs, as in the case of one of two
defendants in an action of tort being struck out, — the suocesBfal
defendant will have a moiety of the joint costs of the defence.

Pkb Curiam. — The plaintiffs are clearly entitled to recover back
the money paid by their brokers in excess of the freight really doe
upon the bills of lading. But they can only recover as against the
shipowner, the defendant John Grant. The name of the other de-
fendant, Robert Grant, will be struck out of the record ; he having
costs which will be taxed by the master in a manner which it is not
necessary for us now to state. Subject to that« the rule will be dis-
charged.

Lush submitted, that» inasmuch as the defendants were obliged to
come to the court, there should be no costs of the rule.

*8301 WiLUAHS, J.^ — You came also on a ground whioh you
^ could not sustain. The costs will be ooata in the oaose in the
naoal way.

Rule diaeharged,-^be reeord to be amended by strikinjg out
the name of the defendant Robert Gr^nt^ the plaiutiflb
paying Robert Grant bi9 costs in this cauae.(a>

(a) Wli^re on« of hro dofendanU in u aetion of coiieraef ii itniek pvt of the roford tl ^
IrUI, and the plaintiff c4>C«Inf a Terdtet afalni t the other, the ordSnarj eomrae of taxation it, la
tax the whole ooett of the aetioa on eaeh aide, and dedaet fveia the plalntMra eeala a BMiety of
*• aoate of tha 4elbaef,— hy nahigjr to the oM nla in ihe taaa ef tha aeqalttal «f oaa of twt
4eftB4aati in an Mti(» of torr. Redwaj «. Wefahari 13 C, 9* N. H 254 {%, C. U B. val 1«#).

COMMON BENCH REPOBTS. (15 J. SCOTT. N. S.) 330

JOHNSON, Assignee of MATHEW GUMMING, a Bankrupt,
V. STEAR. N<n), 3.

A. dipoiit«d A doek-wamot for brandieg wiUi B., m a security for a loan, which was to be
repaid on the 29th of Jannary, or, in default, the brandies were to be forfeited. On the 28th» B.
agreed for the sale of the brandies to C, and on the 29th delirered to him the doek-warraot,
and C. took aetaal possession of the brandies on the 30th : —

Held, that the sale on the 28th, and the delirery of the dock-warrant to the vendee on the
29th, — A. having the whole of that day to redeem it, — amoanted to a conversion.

And held by Erie, C. J., Byles, J., and Keating, J., that the proper measnre of damages was
the aetaal damage A. had sustained by the wrongful conversion, which, as there was no inton-
tioD on bis part to redeem the pledge, was merely nominal.

But by Williams, J., that the proper measure of damages was the value of the thing converted,
—the bailment having been terminated by the wrongful sale.

This was an action brought by the plaintiff as assignee of one
Mathew Camming, a bankrupt, for the alleged wrongful conversion
by the defendant of 243 cases of brandy and a pipe of wine.

The defendant pleaded not guilty and not possessed, whereupon ,
issue was joined.

♦The cause was tried before Erie, C. J., at the sittings in r»Qot
London after last Easter Term. The facts as proved or ad- '-
milted were as follows : — On the 26th of January, 1862, the bankrupt.
Camming, applied to the defendant for an advance of 622. 10«. upon
the security of certain brandies then lying in the London Docks.
The defendant consented to make the advance, and Gumming gave
him his acceptance at one month for the amount, at the same time
handing him the dock- warrant for the brandies and the following
memorandum: —

"I have this day deposited with you the undermentioned 243 cases
of brandy, to be held by you as a security for the payment of my
acceptance for 622. 10^., discounted by you, which will become due
Jannarv 29th, 1863 ; and, in case the same be not paid at maturity, I
authorize you at any time, and without further consent by or notice
to me, to sell the goods above mentioned, either by public or private
sale, at such price as you think fit, and to apply the proceeds, after
all charges, to the payment of the bill : and, if there should be any
deficiency, I engage to pay it.

(Signed) "M. Gumming."

Then followed an enumeration of the marks and numbers on the
cases.

On the Sd of January, Gumming obtained from the defendant a
further advance of 252. upon the security of a warrant for a pipe of
port wine, with an I. O. Tj. and a post-dated check (7th January), but
no distinct authority, as in the case of the brandies, to sell on default
of payment on a given day.

Camming absconded on the 6th of January, and was declared a
bankrupt on the 17th; and the plaintiff was afterwards appointed
assignee.

On the 28th of January, the defendant contracted *to sell the poftA
brandies to Messrs. Buck & Co. On tb« 29th (the day on l-
vhicli Cumming*& acceptance became due) the dock-warrant was
deKrered to them, and on the 30th they took actual possessioa of thn
bmntfen. The eheck given by Gumming for the second advance

332 JOHNSON r. STEAR. M. T. 1863.

being also dishonoured, the defendant sold the wine for 40Z. The
demand and refusal were on the 27th of February.

On the part of the defendant it was submitted that there was no
conversion, and that the transactions were protected, the adjudication
being now the dividing line ; and that, at all events, the plaintiflF was
only entitled to nominal damages for the premature sale of the bran-
dies, — it being assumed that the bankrupt had no intention to avail
himself of his right of redemption.

Under the direction of the learned judge, the jury returned a
verdict for the plaintiff, assessing the value of the wine at 40t, and
that of the brandies at 62?. lOs. ; and leave was reserved to the de-
fendant to move to enter a verdict for him if the court should be of
opinion that the plaintiff was not entitled to recover.

Powell, in Trinity Term, moved for a rule accordingly.

Erle, C. J. — As to the wine there is no doubt: there was a mere

deposit of the warrant as a pledge to secure the repayment of the

> sum advanced, no day being fixed, and no power reserved to sell on

default. The sale, therefore, was clearly a conversion. As to the

brandies, however, the rule may go upon both points.

Denman, Q. C, and Howard, now showed cause. — The sale of the
brandies took place on the 28th of January, or at the latest on the
♦S3*l 2^^^' when the ♦dock- warrant was handed over to the vendees :
-' Spear v. Travers, 4 Campb. 251 ; Zwinger v. Samuda, 7 Taunt.
265, 1 J. B. Moore 12, Holt, N. P. C. 895 (E. C. L. R. vol. 3); Lucas
V. Dorrien, 7 Taunt. 278 (E. C. L. B. vol. 2), 1 J. B. Moore 29. It
was a wrongful dealing with the goods which was inconsistent with
the rights of the owner. Jones v. Cliff, 1 C. & M. 640, 3 Tyrwh.
576, Montague on Lien, App. 185 et seq., and Cross on Lien, p. 386,
were also referred to.

Powell, Q. C, in support of his rule. — There was no evidence of a
conversion of the brandies. It is true there was a contract between
the defendant and Buck & Co. for their sale on the 28th, and the war-
rant was delivered to them on the 29th : but they did not actually
take possession of the brandies until the 30th; until which time it
was competent to them to reject them. [Eble, C. J. — Buck, who was
called as a witness, stated that the contract for sale was absolute ou
the 28th. There was no contention about that at the trial.] The
learned counsel referred to Ellis v. Hunt, 3 T. B. 464, and to the
authorities collected in Addison on Torts 270, 271. He also insisted
that the plaintiff could only be entitled to nominal damages, inasmuch
as there was no pretenc^ ior supposing that the bankrupt intended to
redeem the brandies, and, although the sale might have been some-
what premature, the plaintiff was not therefore to lose his lien.

Our. adv. vuU.

Erlb, C. J., now delivered the judgment of the m^'ority of the
court : (a) —

In trover by the assignee under the bankruptcy of one Gumming,

the facts were that Cumming had deposited brandy Iving in a dock

*3341 ^^*^ ^°® Stear, by *delivering to him the dock-warranty and

^ had agreed that Stear might sell, if the loan was uot repaid

on the 29th of January ; that, on the 28th of January, Stear sold the

(a) Consisting of hinweli; Byles, J., and Keating, J.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 334

brandy, and on the 29th handed over the dock-warrant to the
vendees, who on the 30th took actual possession.

Upon these facts, the questions are, — first, was there a conversion ?
and, if yes, — secondly, what is the measure of damages?

To the first question our answer is in the affirmative. The wrong-
ful sale on the 28th, followed on the 29th by the delivery of the dock-
warrant in pursuance thereof, was, we think, a conversion. The
defendant wrongfully assumed to be owner in selling ; and, although
the sale alone might not be a conversion, yet, by delivering over the
dock- warrant to the vendees in pursuance of such sale, he interfered
with the right which Gumming had of taking possession on the 29th
if he repaid the loan ; for which purpose the dock-warranf would
have been an important instrument. We decide for the plaintiff on
this ground : and it is not necessary to consider the other grounds on
which he relied to prove a conversion. Then the second question
arises.

The plaintiff contends that he is entitled to the full value of the
goods sold by the defendant, without any deduction, on the ground
that the interest of the defendant as bailee ceased when he made a
wrongful sale, and that therefore he became liable to all the damages
which a mere wrong-doer who had wilfully appropriated to himself,
the property of another without any right ought to pay. But we are
of opinion that the plaintiff is not entitled to the full value of the
gooas. The deposit of the goods in question with the defendant to
secure repayment of a loan to him on a given day, with a power to
sell in case of default on ♦that day, created an interest and a r^ooK
right of property in the goods which was more than a mere '•
lien: and the wrongful act of the pawnee did not annihilate the con-
tract between the partifes nor the interest of the pawnee in the goods
under that contract.

It is clear that the actual damage was merely nominal. The de-
fendant by mistake delivered over the dock-warrant a few hours only
before the sale and delivery by him would have been lawful ; and by
such premature delivery the plaintiff did not lose anything, as the
bankrupt had no intention to redeem the pledge by paying the loan.

If the plaintiff's action had been for breach of contract in not keep-
ing the pledge till the given day, he would have been entitled to be
compensated for the loss he had really sustained, and no more : and
that would be a nominal sum only. The plaintiff's action here is in
name for the wrongful conversion ; but, in substance, it is the same
cause of action ; and the change of the form of pleading ought not in
reason to affect the amount of compensation to be paid.

There is authority for holding, that, in measuring the damaged to
be paid to the pawnor by the pawnee for a wrongful conversion, of
the pledge, the interest of the pawnee in the pledge ought to be taken
into the account. On this principle the damages were measured in
Chinery v. Yiall, 5 Hurlst. & N. 288. There, the defendant had sold
sheep to the plaintiff; and, because there was delay in the payment
of the price by the plaintiff, the defendant resold the sheep. For this
wrong the court held that trover lay, and that the plaintiff was
entitled to recover damages ; hot that, in DieaBaring the amomt of
those damages, although the plaintiff was entitled to- be indemnified

C. B. N. 8., VOL. XV.— H

835 JOHNSON v, STKAR. M. T. 1863.

against any loss he had really sustained by the resale, yet the defend-
*3361 ^^^ ^^ ^^ unpaid vendor had an interest in the *sheep against
^ the vendee under the contract of sale, and might deduct tbe
price due to himself from the plaintiff, from the value of the sheep at
the time of the conversion.

In Story on Bailments, § 315, it is said : "If the pawnor, in conse-
quence of any default or conversion by the pawnee, has recoTcred
back the pawn or its value, still the debt remains and is recoverable,
unless in such prior action it has been deducted : and it seems that,
by the common law, the pawnee in such action for the value has a
right to have the amount of his debt recouped in damages." For this
he cites Jarvis v, Rogers, 15 Mass. R. 389. The principle is also
exemplified in Brierly v. Kendall, 17 Q. B. 937 (E. C. L. R. vol. 79).
There, although the form of the security was a mortgage, and not a
pledge ; and although the action was trespass, and not trover ; yet the
substance of the transaction was in close analogy with the present
case. There was a loan by the defendant to the plaintiff, secured by
a bill of sale of the plaintiff's goods, in which was a reservation to the
plaintiff of a right to the possession of the goods till he should make
default in some payment. Before any default, the defendant took the
goods from the plaintiff, and sold them. For this wrong he was
liable in trespass: but the measure of damages was held to be, not
the value of the goods, but the loss which the plaintiff had really
sustained by being deprived of the possession. The wrongful act of
the defendant did not annihilate his interest in the goods under the
bill of sale; and such interest was to be considered in measuring the
extent of the plaintiff s right to damages.

On these authorities we hold that the damages due to the plaintiff
for the wrongful conversion of the pledge by 4he defendant, are to be
measured by the loss he has really sustained ; and that, in measuring
*S371 *^^^^^ damages, the interest of the defendant in the pledge at
^ the time of the conversion is to be taken into the account It
follows that the amount is merely nominal, and therefore that the
verdict for the plaintiff should stand, with damages 40s.

Williams, J.— I agree with the rest of the court that there was
sufficient proof of a conversion ; for, although the mere sale of the
goods (according to The Lancashire Wagon Company v. Fitzhugh, 6
Hurlst. & N. 602) would have been insufficient, yet I think the band-
ing over of the dock-warrant to the vendees before the time bad
arrived at which the brandies could be properly sold, according to
ihe terms on which they were pledged, constituted a conversion,
inasmuch as it was tantamount to a delivery. Not that the warrant
is to be considered in the light of a symbol, according to the doctrine
^applied to cases of donations mortis causS; it is the means of coming at
.the possession of a thing which will not admit of corporal deliveryja)

But I cannot agree with my Lord and my learned Brothers as to
the other point ; for, I think the damages ought to stand for the full
value of the brandies. The general rule is indisputable, that the
measure of damages in trover, is, the value of the property at the
time of the conversion. To this rule there are admitted exceptions.
There is the well-known case of a redelivery of the goods before

{«) Wurd f. Turner, 2 Vm. md. 431 ; Smith v. Smiib, 2 Stra. 295.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 337

action brought, which, though it cannot cure the conversion, yet will
go in mitigation of damages. Another exception is to be found in
cases where the plaintiff has only a partial interest in the thing con-
verted. Thus, if one of several joint-tenants or tenants in common
alone brings an action against a stranger, he can recover only the
value of his share. So, if the plaintiff, though solely entitled r^ooa
*to the possession of the thing converted, is entitled to an ^
interest limited in duration, he can only recover damages proportionate
to such limited interest, in an action against the person entitled to the
residue of the property (though he may recover the full value in an
action against a stranger). The case of Brierly v. Kendall, which my
Lord has cited, is an example of this exception. There, the gooas
had been assigned by the plaintiff to the defendant by a deed the
terms of which operated as a re-demise, and, since the defendant's
quasi estate in remainder was not destroyed or forfeited by his con-
version of the quasi particular estate, the plaintiff, as owner of that
estate, was only entitled to recover damages in proportion to the
value of it.

With respect, however, to liens, the rule, T apprehend is well
established, that, if a man having a lien on goods abuses it by wrong-
fully parting with them, the lien is annihilated, and the owner's right
to possession revives, and he may recover their value in damages in
an action of trover. With reference to this doctrine, it may be useful
to refer to Story on Bailments. In § 325, that writer says : " The doc-
trine of the common law now established in England, after some
diversity of opinion, is, that a factor having a lien on goods for
advances or for a general balance, has no right to pledge the goods,
and that, if he does pledge them, he conveys no title to the pledgee.
The effect of this doctrine is, in England, to deny to the pledgee any
right in such a case to retain the goods even for the advances or
balance due to ih6 factor. In short, the transfer is deemed wholly
tortious; so that the principal may sue for and recover the pledge,
without making any allowance or deduction whatever for the debts
due by him to the factor." After stating that the English legislature
had at length interfered, *the learned author continues, in r^oog
§ 826, — ''In America, the general doctrine that a factor cannot '-
pledge the goods of his principal, has been repeatedlv recognised,
fettt it does not appear as yet to hiLve been carried to the extent of
declaring the pledge altogether a tortious proceeding, so that the title
is not good in the pledgee even to the extent of the lien of the factor, or
so that the principal may maintain an action against the pledgee with-
out discharging the lien, or at least giving the pledgee a right to
recover the amouni of the lien in the damages^ But» in the 6th edition, by
Mr. Bennett, it is added, — ''Later decisions have, however, ful]^
settled the law, that a pledge by a factor of his principal's goods is
wholly tortious, and the owner may recover the whole value of the
pledgee, without any deduction or recoupment for his claim against the
factor.^^ And I may mention that I have reason to believe this rule
aa to liens was acted upon a few days ago in the . (yoart of Queen's
Bench.(a)

But it ia said that the maintenance of sooh a rule in respect of

(a) BUM «. Springftold, 9 Law T. H. 8. 126.

JOHNSON V. STEAR. 31. T. 1863.

pledges is inconsistent witli Chinery v. Viall, mentioned by my Lord.
It seems to me, however, that the decision of that case does not
interfere with the general rale as to damages in trover, but only
establishes a further exception in the peculiar and somewhat anoma-
lous case of an unpaid vendor, whose right in all cases has been
deemed to exceed a lien : see Blackburn on Contracts, p. 820. I can-
not, however, think, that this exception can be properly extended to
the case of a pledgee. An unpaid vendor has rights independent of
and antecedent to his lien for the purchase-money. But the property
of a pledgee is a mere creature of the transaction of bailment; and, if
the bailment is terminated, must surely perish with it. Accordingly,
*34m ^* ^® ^^^ ^° Story on *Bailments, § 827, — " It has been inti-
-' mated that there is, or may be, a distinction favourable to the
pledgee, which does not apply, or may not apply, to a factor, since
the latter has but a lien, whereas the former has a special property in
the goods. It is not very easy to point out any substantial distinction
between the case of a pledgee and the case of a factor. The latter
holds the goods of his principal as a security and pledge for his
advances and other dues. He has a special property in them, and
may maintain an action for any violation of this possession, either by
the principal or by a stranger. And he is generally treated, in judi-
cial discussions, as in the condition of a pledgee." Again, in § 299, —
•*As possession is necessary to complete the title by pledge, so, by
the common law, the positive loss or the delivery back of the posses-
sion of the thing with the consent of the pledgee, terminates his iitleP
And, further, in the same section, — "If the pledgee voluntarily, by
his own act, places the pledge beyond his own power, as, by agreeing
that it may be attached at the suit of a third person, that will amount
to a waiver of his pledge."(rt)

It should seem, then, that the bailment in the present case was
terminated by the sale before the stipulated time ; and, consequently,
that the title of the plaintiff to the goods became as free as if the bail-
ment had never taken place. If he had brought an action against an
innocent vendee, the passage I have already cited from Story, § 325,
demonstrates that he might have recovered the absolute value of the
goods as damages. Why should he be in a worse condition in
respect of an action against the pledgee who has violated the contract
of pledge?

The true doctrine, as it seems to me, is, that, whenever the plaintiff
♦3411 ^^^^^ ^^^® resumed the property, if he *could lay his hands
■* on it, and could have rightfully held it when recovered as the
full and absolute owner, he is entitled to recover the value of it as
damages in the action of trover, which stands in the place of such
resumption.

In the present case, I think it plain that the bailment having been
terminated by the wrongful sale, the plaintiff might have resumed
possession of the goods freed fVom the bailment, and might have held
fthem rightfully when so resumed, as the absolute owner, against all
(ihe world. And I therefore think he ought to recover the lull value
of them in this action.

Nor ean I see any iajustioe in the defendant's bring thos remitted

a) doe WUtiker v. Sammr, SO PUk. B. 890.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 341

to his unsecured debt, because his lien has been forfeited by his owd
mlation of the conditions on which it was created.

Rule absolute to reduce the damages to 40«.

In the principal case the defendant
sold the goods, pledged with hin) to
Becure a loan, before the day of repay-
ment had arrived. Although an action
of trover was brought for the wrongful
conversion, the damages were limited
to such as could have been recovered
bad the action been one for the breach
of the contract ; and as the plaintiff's
assignor had no intention, being a hank-
nipt, to repay the loan, the damages
were merely nominal.

In Donald v. Suckling, the plaintiff
pledged, as security for the payment
at maturity of a bill of exchange en-
dozBed by him, debentures with a
broker who discounted the draft. Be-
fore it fell due, the broker repledged
the debentures to the defendant as se-
euritj for a loan to himself larger than
the amount of plaintiff's draft. The
ooort refused to sustain an action of
detinne for the debentures, on the
ground that the plaintiff was not enti-
tled to reclaim them until he had paid
the debt to secure which they were
originally ^ven, notwithstanding the
broker's violation of his duty as a bailee.
The breach of duty did not terminate
the bailment, but only justified, as in
the principal case, an action for the
damages which the plaintiff had actu-
tUy suffered : L. B. 1 Q. B. 585. In
Halliday v. Holgate, certificates of
shares in a mining company were
pledged to secure the repayment of a
loan, advanced without mention* of the
period of credit. The pledgee, after
the bankruptcy of the pledgor, sold
vithout a demand for repayment, and
without notice of his intention to sell,
apon the bankrupt or his assignee, a
portion of the certificates. The as-
signee, without tendering payment,
brought trover against the pledgee for

the value of the certificates. The
Court of Exchequer nonsuited the
plaintiff, and this decision was affirmed
on appeal in the Exchequer Chamber :
37 L. J. R. Ex. 174 ; L. R. 3 Ex. 299.

These decisions indicate the direc-
tion of the development which the law
is at present undergoing. As the
modern • inclination is to assimilate
the forms of action, the measure of
damages for the breach of the bailment
is equalized in the actions of assumpsit,
trespass, and trover, which are allowed
to be maintained, and the action of de-
tinue is refused, in part upon the ground
that were it sustained, a different esti-
mate would be established.

The American decisions follow, in
the main, the English precedents, and
commend the rule, as sound, which
Hmits the damages to the value of the
pledge at the time of the wrongful con-
version. Thus the decision in the
principal case was expressly recognised
and acted upon in The Baltimore Mar
rine Insurance Company v. Dalrymple.
There the stock pledged as collate-
ral security for the repayment of a
loan, was, after demand, and defiELult,
put up for sale, and bought in by the
pledgee, who subsequently sold it at
private sale. It was held to be at the
pledger's election to treat the first sale
as a conversion, or as a continuation of
the bailment, (Middlesex Bank v.
Minot, 4 Met. Mass. 825). The
second sale was a conversion, but the
damages were limited to the value of
the stock at the time of the sale, over
and above the amount of the loan which
it was given to secure : 25 Md. (1866)
269; Bulkeley. v. Welch, 31 Conn.
(1863) 339.

In Lewis v, Mott, Brown pledged
with How, Illinois scrip for $2000 as

341c VANQUELIN v. BOUARD. M. T. 1863.

R. C. F. VANQUELIN v. BOUARD. Nov. 19.

The first ooant of the declaration stated that one V., a French subject domiciled in Fraaee,
drew certain bills at Orleans upon the defendant at Paris ; that V. endorsed them to one B. ;
that, the bills being dishonoured, B. obtained judgment against the defendant and V. in an action
thereon in the court of the Tribunal of Commerce of the department of the Seine, a court of com-
petent jurisdiction In that behalf; that, according to the laws of France, in ca^e V. satisfied the
judgment, the defendant would become liable to pay V. the am«unt with interest, and V. would
beeome entitled to the benefit of the judgment against the defendant, and would be substituted
for B. in all his rights upon the same against the defendant, and entitled to enforce the same
for his own benefit against the defendant; that afterwards and whilit the judgment was in fall
force and unsatisfied bj either the defendant or V., the latter died in France, and the plaintiff,
his widow, became, in accordance with the laws of France, " the donee of the universality of the
real and personal estates belonging to the succession of V. at his death, and thereby, end accord-
ing to the laws of the said empire, all rights, claims, and causes of action, and also all liabilities
and obligations of V., Tested in her personidly and absolutely, and she became according to the
•aid laws liable personally upon the said judgment, and also entitled personally and in her own
name to sue for and enforce all the rights and claims of V., and she was, according to the said
laws, substituted for, and placed in the same position with respect to the defendant as regards
the said bills and the said judgment thereon, to all intents and purposes as V. had been in his
lifetime; " that, afterwards, the plaintiff was obliged to pay and did pay the amount of the said
judgment and interest, and thereupon B. delivered to her the bills and the record of the judg-
ment, and the plaintiff then became and was, according to the laws of France, entitled to the
benefit of all the rights of B. upon the judgment against the defendant, and entitled to enforce
the same against the defendant, and to be substituted for B. in all his rights against the defend-
ant in re8)>ect of the judgment, and the defendant became indebted and liable to pay the plain-
tiff the amount so paid by her, with interest; that, the defendant having neglected to pay the
moneys so due from him to the plaintiff, the latter, in order to keep alive the liability of the
defendant, and to prevent the same from being barred by lapse of time, and also in order to
give effect to and enforce her claim upon the said judgment, took proceedings in the Tribunal
Civil of the First Instance of the department of the Seine, being a court of competent jurisdic-
tion in that behalf, and, according to the practice and procedure of that court, on the 2d of April,
1862, by adjudication of the court, an injunction was made to the defendant, in the name of
law and justice, to pay within twenty-four hours to the plaintiff certain sums for principal,
interest, and expenses ; that all conditions precedent, Ac, had been complied with to entitle the
plaintiff according to the laws of France to be paid those several sums ; and that they remained
unpaid.

Held, on demurrer to this count, that it sufficiently disclosed a right in the plaintiff te sue in
respect of the cause of action therein mentioned in the French courts in her own name, and
consequently that it was competent to her to maintain an action %ere in respect of the payment
so made by her after her husband's death, without taking out letters of administration in this
country.

To this count the defendant pleaded that the bills were not drawn at Orleans, aa alleged. —
Held, bad.

He further pleaded (11), that the sums alleged to be due by virtue of the said judgment and
injunction, and under the circumstances mentioned in the count, would, according to the laws of
France, form part of the succession of the deceased, and be assets in the hands of the plaintiff
as such donee of the universality of the real and personal estates belonging to the succession of
the deceased, to be administered, such donee being, according to the said laws, the represen-
tative of the deceased lit France, and entitled to the said sums of money in her represent atire
character, and not otherwise : — Held, a bad plea, upon the same ground that the count was
held good.

He further pleaded (12), that the judgment in the first count mentioned was a judgment by
default for want of appearance by the defendant in the court of the Tribunal de Commerce, and
by the law of France would become void as of course on an appearance being entered : — Held,
bad ; for that the possible contingency of the judgment of the foreign court being set aside there,
is no answer to an action to enforce it here.

He further pleaded (13), that the court of the Tribunal de Commerce was not a court of com-
petent jurisdiction according to the French law, because the defendant was not a trader when
he accepted the bills, and because the bills falsely purported to be drawn at Orleans, whereas
they wore not drawn there, nor was the drawer domiciled there at the time the bills were drawn :
— Held, bad, — it sufficiently appearing that the Tribunal de Commerce had jurisdiction over
the subject-matter of the suit, and that the matters alleged in the plea were matters which (if
any defence) mi^ght and ought to have been set up by way of defence in that court

COMMON BENCH REPORTS. (16 J. SCOTT. N. S.) 341cl

The aaoooi count stated, that certain billa of exchange were drawn npon the defendant by Y,,
and accepted by him and dishonoured, that V. died, and the plaintiff was according to the laws
of France " the donee of the uniTcrsality of the personal and real estates belonging to the sue-
cession of V., and thereupon became entitled to all debts, claims, and causes of action which
the deceased was entitled to, and the same became and were according te the said laws vested
in the plaintiff personally and absolutely, in the same manner as they were vested in V., and
the plaintiff was entitled to demand and sue for the same in her own name and in her own rights
and the claims and rights of the deceased npon the said bills became vested in the plaintiff, uid
she became entitled to sue the defendant thereupon in her own name and in her own right : —
Held, good, — it sufficiently appearing that the plaintiff was entitled to sue npon the bills in her
own right ; the fact of her being the donee of the universality of the personal and real estates
belonging to the succession of her deceased husband giving her by the law of France rights
different from those which an executor or administrator has in this country.

For the same reasons, a plea (16) to the second count, that the plaintiff was not execntor or
administrator of V., deceased, was held bad.

The IStb plea, — to both counts,— stated that V. and the defendant, in France, agreed to pur-
chase for their joint benefit a debt due to one Q., and charged upon certain property in France;
that it was agreed upon between them that V. should advance the purchase-money, and that
the defendant should accept the bills in the declaration mentioned as a security to the deceased in
ease the debt should not realize the amount of the purchase-money ; that, except aa aforesaid,
there was never any value or consideration for the acceptance of the bills ; that V. recovered
a large snxn in respect of the said debt, and retained the same; and that the share thereof
belonging to the defendant, and so retained by V., was more than sufficient to satisfy the claim
of V. in respect of the said judgment and bills : — Held, that this plea was a good answer to the
eltim in the second count, as amounting to an allegation that the bills were accommodation
bills and that there was no value or consideration for their acceptance ; but that it afforded no
answer to the first count.

That which constitutes a defence in the foreign court is not pleadable in an action upon tht
indgment in the courts of this country.

The rule, that, in order to entitle a party to sue in any court of this country, whether of law
or equity, in respect of the personal rights of a testator or intestate, he must appear to have
obtained probate or letters of administration from the proper court here, is subject to this qua*
lification, that he is suing in right of the deceased.

The first count of the declaration stated that theretofore, to wit, in
the year 1840, at Orleans, in the empire of France, one J. A. F. Van-
quelin, being a French *8ubject, and domiciled in the said r^o^o
empire, by three certain bills of exchange directed to the •■
defendant at Paris, required the defendant to pay to his the said J. A.
F. Vanquelin's order, at the several times therein mentioned, certain
sums of money amounting in the *whole to the sum of 14,000 rmoAQ
francs in money of the said empire, and the defendant, in Paris, *■
accepted the said bills, and the said J. A. F. Vanquelin endorsed the
said bills in France aforesaid to one Bolli ; and the said bills arrived
at maturity, and according to the laws of the said empire the
defendant was under the primary obligation to honour and pay the
amount of the said draft?, and the said J. A. F. Vanquelin was
also liable as drawer of the same to pay and take up the same in case
the defendant dishonoured the same; and the said bills were all
dishonoured by the defendant; and afterwards, according to the
laws of the said empire, the said Bolli, as the holder and endorsee
of the said bills, took proceedings in the Court of the Tribunal of
Commerce of the department of the Seine, which was a court of
competent jurisdiction in that behalf, against the defendant as acceptor
and the said J. A. F. Vanquelin as drawer of the said bills, in order to
enforce payment thereof; and certain proceedings were thereupon duly
had in the said court, according to the laws of the said empire, and accora*
ing to the *practice and procedure of the said court ; and a judg- r^toAA
ment of the said court was obtained by the said Bolli against ^

344 • VANQUELIN v. BOUARD. M. T. 1863.

the said J. A. F. Vanquelin and the defendant; and by the said judg-
ment it was adjudged and considered that the defendant and the said
J. A. F. Vanquelin were indebted to the said BoUi jointly and
severally in the said amount of the said bills, namely 14,000 francs of
money of the said empire, being equal to 560?. sterling money of
Great Britain, together with interest at the rate of 6 per cent,
per annum from the day of the maturity of each bill till judg-
ment; and the defendant and the said J. A. F. Vanquelin were
condemned to pay the said amount, together with costs ; and there-
upon, according to the laws of the said empire, the said J. A. F.
Vanquelin was, according to the said laws, under an obligation to*
satisfy the amount of the said judgment, being the said principal
sums and interest, and also further to pay interest upon the amount
of the said judgment at the said rate till payment ; and also, according
to the said laws, the defendant was liable to the said J. A. F. Van-
quelin for the amount of the said bills, and in case the said J. A. Van-
quelin paid the amount of the judgment to the saidBolli, the defend-
ant would become liable to pay the said J. A. F. Vanquelin the
amount of the said judgment, together with interest upon the same
at the rate of 6 per centum per annum until payment, and the said
J. A. F. Vanquelin would become entitled to the benefit of the said
judgment against the defendant, and would be substituted for the
said Bolli in all his rights upon the same against the defendant, and
entitled to enforce the same for his own benefit against the defendant :
Averment, that afterwards, and whilst the said judgment was in full
force and unsatisfied by either the defendant or the said J. A. F. Van-
quelin, the said J. A. F. Vanquelin died within the said empire
♦3451 *^^ France, and the plaintiff was, in accordance with the laws
■' of the said empire, the donee of the universality of the real and per-
sonal estates belonging to the succession of the said J. A. F, Vanquelin at
his death, and thereby , and according to the laws of the said empire, all
rights, claims, and causes of action, and also all liabilities afid obHgaiions
of the said «7. A. F. Vanquelin vested in the plaintiff personally and
absolutely, and the plaintiff became, according to the said laws, liable
personally upon the said judgment, and also entitled personally and t'n
her oum name to sue for and enforce all the rights and claims of the said
J. A. F. Vanquelin, and the plaintiff was according to the said laws
substituted for and placed in the same position with respect to the
defendant as regards the said bills of exchange and the said judgment
thereon to all intents and purposes, as the said J. A. F. Vanquelin had
been in his lifetime: That, afterwards, and whilst the said judgment
was in full force and unsatisfied, and the plaintifi;' and defendant were
both liable thereupon, the plaintiff, in accordance with the said laws,
was obliged to pay and did pay the full amount of the said judgment
and all interest due thereon : and thereupon the said Bolli, according
to the laws of the said empire, delivered to the plaintiff' the said bills
of exchange and the record of the said judgment, and the plaintiflF
then became and was and still is according to the laws of the said
empire entitled to the benefit of all the rights of the said Bolli upon
the said judgment against the defendant, and entitled to enforce the
same against the defendant, and to be substituted for the said Bolli in
all his said rights against the defendant in respect of the said judg-

COMMON BENCH REPORTS. (16 J. SCOTT. N. S.) 346

ment, and the defendant became and was indebted and liablp to pay'
to the plaintiff the amount so paid by the plaintiff upon the said
judgment, together with 6 per centum per annum interest *there- r^QAa
upon until payment : That afterwards, and before this suit, the L «> ^
defendant having neglected and refused to pay to the plaintiff the said
moneys so due from him to the plaintiff as aforesaid, the plaintiff in
order to keep alive the said liability of the defendant, and to prevent
the same being barred by lapse of time, and also in order to give effect
to and enforce her said claim against the said defendant for the said
moneys due upon the said judgment, and the further interest due upon
the same, took proceedings in the said court, namely, the Tribunal
Civil of the First Instance of the department of the Seine, being a
court of competent jurisdiction in that behalf, and certain proceed-
ings were thereupon had in the said court, according to the laws of
the said empire and the practice and procedure of the said court,
against the defendant at the suit of the plaintiff; and thereupon,
according to the practice and procedure of the said court, that is to
say, on the 2d of April, 1862, by adjudication of the said court, an
injunction was made to the defendant in the name of law and justice
to pay within twenty-four hours to the plaintiff the several sums of
money following, that is to say, — ^first, 14,000 francs of money of the said
empire, being the principal amount of the said bills of exchange, —
secondly, 17,640 francs of money of the said empire for interest upon
the same at the rate of 6 per centum per annum from the 2d day of
February, 1841, to the 2d day of February, 1862,— thirdly, the
interest from the said 2d of February, 1862, until payment, at the
said rate, — fourthly, 152/r. 60c. of money of the said empire, for
costs; and, failing to do so, it was adjudged and notified to the
defendant that he would be constrained to do so by all lawful means
and by arrest of his body : And that all conditions precedent were
performed, and all times elapsed, and all matters and tnings had been
♦done and happened, necessary to entitle the plaintiff according r*Q^7
to the laws of the said empire to be paid the said sums of ^
money, amounting in the whole to the equivalent in sterling money
of Great Britain of 1285/. 10*. lOrf., which the defendant was so
enjoined to pay to her as aforesaid ; and that the defendant's liability
to pay the same still was, at the commencement of this suit, and still
is, in full force and effect ; and the defendant wholly refuses to pav
the same, or any part thereof, and the whole remains due and unpaid.
The second count stated, that theretofore, to wit, at Orleans, in the
empire of France, one J. A. F. Vanquelin, by his three several bills
of exchange, now overdue, directed to the defendant, at Paris, in the
said empire, reC[uired the defendant to pay to his the said J. A. F.
Vanquelin's several orders the three several sums of money following,
that is to say, one bill for 5000 franca of the money of the said empire,
another bill for 4000 francs of the said money, and a third bill for
5000 francs of the said money, amounting in the whole to 14,000
francs, being of the equivalent value of 560t sterling money of Great
Britain, at the several dates therein mentioned; and the defendant
accepted the said bills ; and the defendant thereupon became liable
according to the laws of the said country to honour and pay the said
drafts at maturity ; and the defendant dishonoured the said drafts and

347 VANQUELIN v. BOUARD. M. T. 1863.

each of them ; and thereupon, according to the laws of the said em-
pire, the*defendant became indebted to the said J. A. F. Vanquelin,
m the several amounts of the said bills, and liable to pay to him the
said amounts of each, together with 6 per cent, interest thereon until
payment ; and afterwards, aud before this suit, and whilst the whole
of the said several principal sums due from the defendant to the said
J. A. F. Vanquelin, together with the said interest, were due and
^oAQ^ wholly unpaid, *and the defendant's liability to pay the same
J and each of them was in full force and e^ect, the said J. A. F.
Yanquelin died, and the plaintiff was, according to the laws of the
said empire, the donee of this universality of the personal and real estates
belonging to the succession of the said J, A. F, Vanquelint and thereupon
became entitled to all debtSy claims, and causes of action which the said «/l
A. F. Vanquelin was entitled to, and the same became and were according
to the said laws vested in the plaintiff personally and absolutely^ in the
same manner to all intents and purposes as they were vested in the said
J. A. F. Vanquelin, and the plaintiff was and is entitled to demand
and sue for the same in her own name and in her own right, and the
claims and rights of the said J. A. F. Vanquelin upon the said several
bills of exchange became vested in the plaintiff, and the plaintiff be-
came entitled to sue the defendant thereupon in her own name and in
her own right: Averment, that the defendant had wholly refused
or neglected to pay the plaintiff the amount of the said bills and
interest, or any part thereof; and, at the commencement of this suit,
the whole remained unpaid, and the defendant was justly indebted to
the plaintiff in respect of the premises and according to the said laws
in the sum of 31,990 francs in money of the said empire, for the prin-
cipal of the said three bills of exchange, and interest thereon at the
said rate, being equal to 12792. 10s. 6d. sterling money of Great
Britain ; and that the defendant had neglected and refused to pay the
same or any part thereof.

The third count was for money payable by the defendant to the
plaintiff for money paid by the plaintiff for the defendant at his re-
quest, and also for interest for the forbearance at interest at the
aefendant's request of moneys due and owing from the defendant to
*3491 ^^^ plaintiff, and also for money found to be due *from the
-I defendant to the plaintiff upon accounts stated between them,
and also for money promised by the defendant to the plaintiff to be
paid in accordance with a certain judgment of a certain court in
France whereby the defendant was declared and adjudged to be
indebted to the plaintiff in a large sum of money, and was enjoined
thereby to pay the same to the plaintiff. Claim 20002.

The defendant demurred to the first count, on the ground that ''the
said count does not allege that the plaintiff is the legal personal repre-
sentative of the said deceased in this country, nor any legal title in the
plaintiff to sue in this country upon the said judgment ; and also that
the said count does not allege that the judgment first mentioned
therein was final and definitive." Joinder.

He also demurred to the second count, on the ground that " the said
oount does not allege that the plaintiff is the legal personal represent-
ative of the said deceased in this country, nor any legal title in the
plaintiff to sue upon the said bills in this country.^' Joinder.

COiMMON BENCH REPORTS. (15 J. SCOTT. N. 8.) 349

The defendant also pleaded, — first, to the first count, that, though
the said J. A. F. Vanquelin drew the said bills of exchange, yet he
did not draw them at Orleans, as alleged.

Eleventh plea, to the first count, that the sums of money alleged
to be due by virtue of the said judgment and the said injunction and
under the circumstances in the said count mentioned, would, accord-
ing to the laws of the said empire of France, form part of the succes-
sion of the said J. A. F. Yanquelin, deceased, and be assets in the
hands of the plaintifTas such donee of the universality of the real and
personal estates belonging to the said succession of the said deceased
to be administered, such donee being according to the *said r^oKA
laws the representative of the said deceased in France, and L
entitled to the said sums of money in her said representative capacity,
and not otherwise ; and that the plaintiff is not in this country tne
executrix of the last will and testament of the said J. A. F. Vanque-
lin, deceased, or the administratrix of the goods, chattels, and credits
which were of the said J, A. P. Vanquelin, deceased, at the time of
his death.

Twelfth plea, to the first count, that the judgment in the said count
first mentioned, was a judgment by default against the defendant for
not appearing in the said proceedings in the said Court of the Tribu-
nal of Commerce, and that, according to the law of France, the said
judgment and the said injunction in the said count mentioned would
become void and of no effect, as of course, as soon as the defendant
entered an opposition to the said judgment in the said court in which
the same was obtained.

Thirteenth plea, to the first count, that the said judgment of the
said Court of the Tribunal of Commerce was a judgment by default
foT want of appearance by the defendant ; and that the said court was
not a court of competent jurisdiction in that behalf, as alleged, accord-
ing to the laws of the said empire, because the defendant was not a
trader when he accepted the said bills, and because the said bills
falsely purport to have been drawn at Orleans, whereas the said bills
were not drawn at Orleans ; and that the said J. A. F. Vanquelin was
not there domiciled at the time the said bills were so drawn as aforesaid.

Sixteenth plea, to the second CQunt, that the plaintiff is not in this
country the executor of the last will and testament of the said J. A.
F. Vanquelin, deceased, or the administrator of the goods, chattels,
and credits which were of the said J. A. F. Vanquelin, deceased, at
the time of his death.

^Eighteenth plea, to the first and second counts, that the r^^^i
said J. A. F. Vanquelin, deceased, and the defendant, in the ^
said empire of Franoe, agreed to purchase for their joint benefit a
certain debt due to one Madame de Querecqae, and charged upon
certain property in France, at a certain price which was below the
amount of the said debt ; and it was agreea between them that the said
deceased should advance the purchase-money, and that the defendant
should accept the said bills in the said counts mentioned as a security
to the said deceased in case the said debt ahould not realise the
amount of the said purohaae-monej ; and that» except aa aforesaid,
there was never any value or consideration for the derendant's accept*
log the said bills ; and that the said deccnurad recovered and receiyea a

355 VANQUELIN v. BOUARD. M. T. 1863.

The Attorney-General v, Bouwens, 4 M. & W. 171, 191, where this
subject is very fully discussed, Lord Abioger, C. B., says: "What-
ever may have been the origin of the jurisdiction of the ordinary to
grant probate, it is clear that it is a limited jurisdiction, and can be
exercised in respect of those effects only which he would have had
himself to administer in case of intestacy, and which must therefore
have been so situated as that he could have disposed of them in pioa
usus. As to 'the locality of many descriptions of effects, household
and movable goods, for instance, there never could be any dispute:
but, to prevent conflicting jurisdictions between different ordinaries
with respect to choses in action and titles to property, it was estab-
lished as law that judgment-debts were assets, for the purposes of
jurisdiction, where the judgment is recorded ; leases, where the land
lies; specialty-debts, where the instrument happens to be; and simple-
contract-debts, where the debtor resides at the time of the testator's
death : and it was also decided, that, as bills of exchange and promis-
sory notes do not alter the nature of the simple-contract debt, but are
merely evidences of title, the debts due on these instruments were
assets where the debtor lived, and not where the instrument was
found." The first plea is clearly bad. [iu^A, Q. C, conceded that.]
The eleventh plea, — that the money alleged to be due by the law of
France formed part of the succession of the deceased, — is also bad. It
*^5fil ^^®^ °^^ deny the *plaintiff*s liability to pay the amount of
J the judgment to Bolli, or the fact of the payment; nor does it
even allege that it formed assets of the deceased in this country ; and,
for the reasons already urged, it is no answer to the plaintiff's claim
to say that that which she is seeking to recover formed assets in
France, and that the plaintiff has not obtained probate or letters of
administration here. The twelfth plea addresses itself to the judg-
ment of the court of the Tribunal de Commerce. As it stands, it is a
valid judgment: but it is not needed to sustain the present action.
The thirteenth plea is also clearly a bad plea. By the comity of
nations, the judgment of a foreign court is held to be conclusive of
the rights between the parties, unless it be shown that there was a
total absence of jurisdiction, and that the proceeding was contrary to
natural justice. The courts here cannot try questions which might
have been tried, and must be assumed to have been properly tried, in
the foreign court. The authorities upon this subject are so well
known that it is hardly necessary to refer to them. They will all be
found collected in the notes to The Duchess of Kingston's Case, in 2
Smith's Leading Cases, 5th edit., 682 et seq. The question sought to
be raised by the sixteenth plea, that the plaintiff is not executor or
administrator of the deceased in this country, is already disposed of.
And the eighteenth plea discloses only matter which might have been
urged by way of defence in the foreign court.
Ijush, Q. C. (with whom was H. J. Hodgaon)^ contri.(a) — " The g^ne*

(•) The poiota marked for ftrgament ob tht put of tht defondant w«r« m fSoUovf :-*
^f <o tht dtmnrrtrw to lAe declaration, — As to the flrtt count, — <' That the plaiatiff elaias
MOordiBg to tht lawt ef Prance a« the mWersal donee of the niocenlon betonging to ihm
deeeand VanqoeUB, and In thst oapaeity aad in bis right to eoforee the eaid jvdf OMot agidnH
thedefeftdaat; hni that, theagk the eomt stalie that the pfabiatUT was bj the lavs af fkuM
inhetitated for the deoeated Vanquelin with reipaot to the defondan^ aa n$u^ the laid bllli
of ezohange and the lald Judgment thereon to all Intents and purposes, it does not appear thai

COMMON BENCH REPOBTS. (15 J. SCOTT. N. S.) 356

ral rule is, that, in order to sue in *any court of thia countrj, r^og^
whether of law or equity, in respect of the personal rights or L •*"'
property of a deceased person, the plaintiff must appear to have ob-
taioed probate or letters of administration in the proper spiritual court
of this country :" 1 Williams on Executors, 6th *edit^ 321 : and r«qra
see the judgment of Tindal, C. J., in Whyte v. Eose, 8 Q. B. L ^^
493 (E. C. L. B. vol. 43), 2 Gale k D. 812. It is immaterial where
the money when recovered will b^ administered. No doubt, a judg-
mentdebt constitutes assets where the judgment is recorded: but that
zneaDs a judgment of a court in this country. A simple-co?>tract-debt
is assets only where the debtor is found : and here a foreign judgment
ranks among simple-contract-debts. The question is, does the plain-
tiff claim the money from the defendant as representing her deceased
husband ? If she does, her title to sue must be vouched by the pro*
per spiritual court here. The declaration is studiously ambiguoas in
this respect: it alleges that the plaintiff is ''the donee of the univer-
sality of the real and personal estates belonging to the succession of
Yanqaelin at bis death, *and thereby and according to the laws ^#059
of France, all rights, claims, and causes of action, and also all ^
liabilities and obligations of Yanquelin, vested in the plaintiff per-
sonally and absolutely, and the plaintiff became, according to the said
laws, liable personally upon the said judgment, and also entitled per-
sonally in her own name to sue for and enforce all the rights and
claims of Yanquelin.'^ In what does that substantiality differ from

tlM pUintiff is tbe legal penonal reprasentatiye in this oountry : " and thai tha udd jadgment
U net ftaal and deftniHTe."

Ai to the leoond ooont,-^" That the eonnt states oertain aeoeptanoes of tht defendant in
fiirov of the deoeaaed Vanqnelin, and that the amonnt thereof was dne to the deoeased at the
tine of hit death ; bat, thovgh the eonnt shows that the same passed to tht plaintiff aooording
to Om lawi of France on the death of the said deoeased, there is no allegation that tht plaintiff
is the legal personal represtntatlTe In this ooantry of the said deceased."

Am to l&< doaiifrert to ik€ pltatf-^

As to the first plea,—" That, an immaterial traTerse cannot be demnrred to ; but, as the ayer-
raent relates to a bill of exchange drawn in a foreign eonntry, there is nothing to show that tht
traTerse is immaterial."

As to the eleyenth plea,—" The plea alleges that the snbject-matter of the first count is part
of the estate of the deceased Vanqnelin, and that the plaintiff is entitled to it in France in her
Wf^tj as representing the deoeased, and not otherwise; and, that being so, the plaintiff is
not entitled to sne in her own right in this country. Her haying in her reprasentatiye capacity
b Prance discharged the liability of the deceased, cannot pat her in a bettor position than if
the dseeastd himself had discharged it The eonnt shows that the plaintiff snes only in right
•f the deceaaed, and does not ayer that she is his legal personal repreoenlatiye in this country."'

As to the tvrifth plea,—" The plea shows that the jndgnent declared npea Is not bindings
liBse it would beeome yold and of no effect, as of ooorse, upon tht defiradaat manly tnlsring
■a opposition to it This is not like a judgment by default for non<appearanct in th\» country."'

As to tht thfateentb plea,—" Hie count alleges that tht said court was a court of oompetent
* joMielMin, and thia plea traytnas that ayermen^ and state* the law of Vranot upon thai
p^iat The irkolm mattar, tharsfbie^ was ooram nan judios^ and tha oouit is Wnam must baya
been misled."

As to the siztatnth plea,— " Tha second count, to which this plea is pleaded, b ibwded upoB*
At is fcnd artf^ allegud aoceptancts in ftyonr of tht deceased Vanqnelin, and allagaa that they
vwodMtohimattliatlmaof hisdeath. Tht |daintiff may hatha legal NpiWiBtatlyttf tha
dssiMad Vaa«MU& in Vrtsioa | hot bo panon can sua ia Ibt fmirti af thia ss iil i y in right sd
* i Wi saass ii , aawspt his legai peisaaat tep r esan t at i ya empowarsd at afyeialsd by tha prtyar tdr
Waal of this country."

As to te alghleonth plaur-^Tha plea showa, that, out otm^Mj helMgbff ta tlw dafca4M%
*e arid VaoqwIiB Ntalntd mart thaa snOtlanl ta saAWy fait «lai« IB psapaoMC^ha said indcr

MiAfBd UUa fT miahii^ik uDd thirt thanfm ia haa 1
0. B, V. 8., VOL. XV.— 16

859 VANQUELIN r. BOUARD. M. T. 1863.

the position of an execator or administrator here? [Erlb. 0. J. —
The rights and liabilities of the testator or intestate do not Jevolvc
personally and absolutely on his executor or administrator.] It is not
alleged that the plaintiff would be liable according to the French law
beyond the amount of the assets coming to her hands. If this debt
when recovered would form part of the deceased's assets or " succea-
fiion," the plaintiff can only sue for it as his administratrix : King v.
Thorn, 1 T. R. 489 ; Ord v. Fenwick, 8 East 103. [Williams, J.—
It was not necessary for the plaintiff, under the circumstances stated
in this declaration, to have probate or letters of administration to
entitle her to sue. The payment to Bolli was after the death of Van-
quelin : the plaintiff was not bound to sue in a representative charac-
ter.] The judgment of Lord Ellen borough in Ord v. Fenwick shows
that she was. [Erls, C. J. — It was enough, to sustain Lord Ellenbo-
rough's proposition there, that the plsLintin might have sued as execu-
trix.] The plaintiff is not suing here upon a judgment obtained by
her in France: the proceeding in the Tribunal Civil of the First
Instance of the department of the Seine, was merely a proceeding
founded upon and intended to enforce the judgment of the Court of
the Tribunal of Commerce. The second count raises another ques-
ition. There is no allegation there that the plaintiff has paid any money,
^3801 ®^ *^ ^^ found a right in herself. The *eleventh plea deals
-I with the judgment and the proceeding to enforce it. If the
4irst count makes the plaintiff no more than an executrix or adminis-
tratrix, the eleventh plea is a good answer to that: it is a traverse
that she fills that character. So that either the declaration is bad, or
the plea is good as traversing what the plaintiff alleges to the cod-
trary. She alleges that the character with which she is clothed en-
titles her (in France) to sue, not *' in her own right," but "in her own
name," which is no more than an executor might say. As to the
twelfth plea, it is clear that there can be no cause of action here upon
a judgment of a foreign court which is not final in the country where
It is obtained. This plea alleges that the defendant might come in at
any time and set that judgment aside. The thirteenth plea is a denial
of the jurisdiction of the court in which the judgment was obtained.
It goes on to allege why: but that is wholly immaterial; for, the
foreign law is only matter of evidence. The sixteenth plea is a good
answer to the second count if the argument that the plaintiff was
bound to sue in a representative character is well founded. As to
the eighteenth plea, — if there was a special bargain such as is alleged
in this plea, no implied promise to repay the money could arise. As
regards the second count, the plea amounts in substance to this, that
the bills were accepted for the accommodation of the drawer, and
that there was no value or consideration for the defendant's accept-
ance.

Smithj in reply. — The first count distinctly avers that the plaintiff
is suing, not in a representative character, but in her own right. If,
she was entitled to sue in her own right in respect of this cause of action
in Prance, she is entitled to do so here. [Erle, 0. J,— We think the
*8A11 ^^^^ count tenable on the ground put by *my Brother Wil-
-* liapiSi viz., that the plaintiff paid the money after the death of
Yanquelin, and so beoame entitled to sue in her own name and right.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 361

Address your attention to the second count, and to the pleas, and more
especially to the eighteenth. Williams, J. — In whatever language yott
put it^ you cannot disguise the fact that the plaintiff was tlie personid
representative of her husband in France. The second count relies on
a cause of action which accrued to the husband in his lifetime.] The
second count alleges that the bills were drawn and accepted in France,
that the plaintiff was donee of the universality, and as such eniitled
by the law of France to sue in her own name and in her own right in
respect of claims and causes of action accruing to her in that charac-
ter: and this is not traversed : consequently that which is essential
to give her the right so to sue in France is admitted. [Keating, J. —
What is the precise position of the " donee of the universality" by
the French law ? Hodgson, — If she chooses to take the assets with-
out inventory, she becomes liable to all the debts and obligations of
the deceased : but, if she avails herself of the benefit of inventory,
her liability is limited to the value of the assets.] What the law of
France may be, is only matter of proof, if traversed. The eleventh
plea is sufficiently answered by what has already been said. Th6
twelfth plea shows that the judgment is an existing judgment. [Wil-
liams, J. — What judgment?] The judgment obtained by Bolli in
the Coart of the Tribunal de Commerce. The other is a proceeding
in a diflferent court — an injunction to pay. As to the thirteenth plea,
-^whether the defendant was a trader or not, or whether the allega-
tion that the bill« were drawn at Orleans were true or not, were mat-
ters properly triable in the Tribunal of Commerce. These are matters
which it is not for this court to enter into. * Where the court r*ggo
in which the judgment, whether foreign or colonial, is pro- ^
nounced has jurisdiction over the subject-matter and over the person
of the defendant, add it appears that he has had an opportunity of,
making his defence there, the grounds of the judgment cannot be
impeached in an action upon the judgment in our courts: The Bank
of Australasia v. Nias, 16 Q. B. 717 (E. C. L. R. vol. 71); Castrique
V. Imrie, 8 C. B.-N. S. 1 (E. C. L. R. vol. 98); Imrie v. Castrique, 8
C. B. N. S. 405. [Williams, J.— You say that the effect of the judg-
meat by default in the French court is, to admit that the plaintiff was
in a position to prove everything that was necessary to give him sue*
cess in the action ?] Yes. As to the eighteenth plea, if what is ther^
alleged was partof the original bargain or arrangement, it might have
been set up as a defence in the French court. The statement in that
plea is at all events no answer to the allegation in the declaration that
the plaintiff was obliged to pay the amount of the judgment to Bolli|
and thus became by the law of France entitled to enforce it against
the defendant. The facts, if true, might possibly be an answer to'
the seoond count, as showing in effect-that the bills were accommoda-
tion bills; and, if it bad been confined to that, it probably would not
have been demurred to, [Williams, J. — Our judgment may be
divided on the demurrer to that plea.]

Hodgson, with the permission of the court, referred to the following
additional authorities :—Havelock v. Bockwood, 8 T. R. 268 ; Bowles
V- Orr, 1 Y. & 0. 464; Plummer t;. Woodbnrne, 4 B. & 0. 626 (E. 0.
L. B. vol lOX 7 D. & B. 25 ; Smith v. NicoUs, 7 Soott 147, 6 If . 0;

fg& VANQUKLIN ». BOUARD. M. T. 1863.

fi9, r Powl. p. 0. 282, aud Patrick v. Sbedden, 2 Ellis & B. 14 (B.
C. L. B. vol. 76).(a)

•aesi *^^^^i 0, J.-^Upon the argament of thege deqiarrei?,
J eevaral questions have been raised with reference to the French
b^. The foandation of the litigation was certain bills of exchange
q{ which the deceased, Jacques Alexander FranQois Yanqnelin, was
4rawer, the defendant the acceptor, and one Bolli the endorsee. Bolli
brought an action against both drawer and acceptor in the Court of
%hQ Tribunal de Oommerce of the department of the Seine, and ob-
tained judgment against them. Yanquelin, the drawer, died : bis
widow» the now plaintiff, in aooordanee with the laws of Franee,
became the donee of the universality of the real and personal estates
belonging to the succeasion of the deceased at his death; and she
I^Ueges that thereby and according to the laws of France all rights^
claims, and causes of action, and all liabilities and obligations of tbe
deceased vested in her pieraonally and absolutely, and she became^
According to the said laws, liable personally upon the said judgment)
l^nd also entitled personally and in her own name to sue for and
^force all the rights and claims of the deceased, and that she was
According to the said laws substituted for and placed in the same posi-
lion with respect to the defendant, as regarded the said bills of ex-
change and the judgment thereon, to all intents and purposes, as the
deceased had been in his lifetime. The count then goes on to allege
that afterwards, and whilst the judgment was in full force and un-
natisfied, and the plaintiff and defendant were both liable thereupon,
the plainti^ in accordance with the laws of France, was obliged to
pay and did pay the full amount of the judgment and all interest duo
thereon, and tMt thereupon Bolli delivered to her the said bills of
exchange and the record of the said judgment, and the plaintiff then
became and still was according to the laws of France entitled to the
*9641 ^^^^^^ ^^ ^'^ ^^^ rights of Bolli ^upon the said judgment
^J against the defendant, and entitled to enforce the same against
the defendant, and to be substituted for Bolli in all his rights against
the defendant in respect of the said judgment ; and that the defendant
became indebted and liable to pay her the amount so paid by her
vpon the said judgment, with 6 per cent, interest thereon until jMiy-
pient. The OQunt then goes on to allege that the plaintifl^ having
ihese rights, in ofder tp ktiep alive the liability of the d^endant^ ana
to prevent the QAme from Wing barred by lapse cf ttnie> aod in order
to give efSdOk to and enfoie^ her claim against the defendant, took;
prooeedi^gs in the Tribtmal Oivil of the First Instanoa of the depart^
ipeut of Vk^ Sein^ and that thereupon, aocor^ng to the pradiee and
procedure qf the said Qai«rt» c«k the 2d of April 1862, by a4|ndiesticm
of the said CQurt an i^ttiietioA was made to the defendant to pay oer^
taip sums of money for principal interest, and costs, and it was
l^cy^<^^ ^^ notified to tk^ d^adant that he would he ooastrained
to do so by all lawful means and by arrest of Uft hocfy. Tiiat is Urn
iub4«WHl 9X th9 fiiet eonitt The substance of the aeeoad eoont is,
itvit ^Ttaipi bi)^ Qf eija^h wga were drawn upon the defendant by th*
doc^M^ and tcQQp|e4 kj him, ^nd diaheooured ; that the deeeeaed
4^4 a«4. tdf pl«iirtif( WM tKMQidiAg ta the laws ef Frai»oe the donea

(a) And m§ SimpMS v. Fogo, M Law J., Ch. 067, ob appMd, 82 Law J., Ch. S49.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 364.

of the universality of the personal atid real estates belonging to the
succession of the deceased, and thereupon became entitled to all debtsi
claims, and causes of action which the deceased was entitled to> and
the same became and were according to the said laws vested in th^
plaintiff personally and absolutely, in the same manner to all ititenti
and purposes as they were vested in the deceased^ and the plaintiff
was entitled to demand and sue for the same in her own name and in
her own rights and the claims and rights of the deceased upon riog^
*the said bills became vested in the plaintiff, and she became ^
entitled to sue the defendant thereupon in her own name and in her
own right; and she demands payment of the amount thereof and
interest. The ground of the demurrei* to these two counts, is, tha^
the plaintiff is in effect suing in a representative character, which she
cannot do without having obtained letters of administration in this
country. The allegation in both counts is^ that, being donee of the
universality of the personal and real estates belonging to the succes*
sion of her deceased husband, the plaintiff became according to thef
laws of France entitled to all the property and rights of the deceased
absolutely in her own right, and not in any representative capacity.
I am of opinion that that averment, if it were necessary to stand upon
it^ must be taken to be true, and so it appears upon the record that
the law of France, in which country all the parties were domiciled^
would give her a locus standi to sue there in her personal capacity^
But it is not necessary to rest upon that. The first count shows, that»
after the death of her husband, the plaintiff paid the amount due ta
BoUi in respect of the bills and the judgment; and that^ it seems^
would give her the right to sue in the courts of France in her owd
name and in her own right, as indeed it Would in this country also*
It has on many occasions been held that an eicecutor or administrator
has his election to sue either in his own right or in his representative
character in respect of transactions arising since the death of thep
testator or intestate, although what is recovered would be assets la
his hands. Here, the allied cause of action is founded mainly upod
what was done by the plaintiff after the death of her husband. Thero
is a further answer to the demurrer to the first count, viz. that the
rights of the plaintiff were confirmed by the second adjudication or
injunction ^obtained by her in the Tribunal Civil of the First r*3g^
Ixiistance of the department of the Seine, which entitled her to '-
execution against the defendant in that country. It seems to mef
therefore, that there is abundant on the first count to show that the

XIaintiff has a good cause of action against the defendant in her in-
ividual capacity, without having recourse to the special matter before
adverted to. As to the demurrer to the second count, it is clear that
the plaintiff took the bills on the death of her husband, and, if nothing
more appeared, she could only enforce them here by clothing herself
with the eharacter of his representative. But the law of domieil
attaches to these parties ; and there is a distinct averment that the
plaintiff was, according to the laws of France, " the donee of the
vniversality of the personal and real estates belonging to the aooces'
sion of the deceased, and thereupon became entitled to all debt%
ilaims, and causes of action which the deceased was entitled to, and
ihe same became and were according to the said laws vested lo the

866 VANQUELIN v, BOUARD. M T. 1863.

plaintiff personally and abgolutely iu the sarae manner to all intents
and purposes as they were vested in the deceased, and the plaintiff
was and is entitled to demand and sue for the same in her otan name
and in her ownnght, and the claims and rights of the deceased apoa
the said bills became vested in the plaintiff, and the plaintiff became
entitled to sue the defendant thereupon in her oum name and in her
awn right^^ I think it sufficiently appears upon this record that the
plaintiff was entitled to sue upon these bills in her own right; the
fact of her being the donee of the universality of the personal and
real estates belonging to the succession of her deceased husband
giving her by the law of France rights different from those which an
executor or an administrator has in this country. I am therefore of
*^ft71 *^P^"^^^ ^^^^ ^^^ plaintiff is entitled to our judgment upon the
-I demurrers to both counts of the declaration.
There are then several pleas which have been demurred to. The
first of these, the first plea upon the record, which alleges that the
said bills of exchange were not drawn at Orleans, is clearly bad. The
eleventh plea, to the first count, states that the sums alleged to be dae
by virtue of the said judgment and injunction, and under the circum-
stances in the count mentioned, would, according to the laws of France,
form part of the succession of the deceased, and be assets in the hands
of the plaintiff as such donee of the universality of the real and per-
sonal estates belonging to the succession of the deceased, to be admin-
istered; such donee being, according to the said laws, the representa-
tive of the deceased in France, and entitled to the said sums of monej
in her representative character, and not otherwise. That which I have
already said as to the plaintiff's right to maintain the action in her
own name, when dealing with the first count of the declaration, and
as to her rights in respect of the second adjudication, in the Tribaoal
Civil of the First Instance of the department of the Seine, seems to
me equally to afford an answer to this plea, and to entitle the plain-
tiff to judgment upon the demurrer thereto. The twelfth plea, to the
first count, alleges that the judgment in the first count mentioned was
a judgment by default for want of an appearance by the defendant in
the Court of the Tribunal of Commerce, and by the law of France
would become void as of course on an appearance being entered. I
apprehend that every judgment of a foreign court of competent jaria-
diction is valid, and may be the foundation of an action in our courts,
though subject to the contingency, that, by adopting a certain course,
^3681 ^^^ P^'^y against whom the judgment is obtained might cause
^ it *to be vacated or set aside. But, until that course has been
pursued, the judgment remains in full force and capable of being sued
^ upon. The plaintiff, therefore, must have judgment on the demurrer
to this plea. The answer set up by the thirteenth plea (also to the
first count), is, that the Court of the Tribunal de Commerce was not
a court of competent jurisdiction according to the French law, because
the defendant was not a trader when he accepted the bills, and because
the bills falsely purported to be drawn at Orleans, whereas they were
not drawn there, nor was the drawer domiciled there at the time the
bills were drawn. But I am of opinion that the judgment of a foreign
court is valid if the court has jurisdiction over the person and over
the subject-matter of the action : and it seem^ to me upon this plea

COMMON BENCH REPORTS. (16 J. SCOTT. N. S.) 36»

that the Court of the Tribanal de Corameroe had jurisdiction over the^
subject-matter of the suit in which the judgment was obtained, viz.,
the h'abilitj of the acceptor of a bill of exchange, and that, if it were
matter of defence that the defendant was not a trader or not resident
within the jurisdiction of the court, it was a matter which ought to-
have been set up by way of defence in that court, and cannot avail,
the defendant in an action upon the judgment here. The definition:
of a *' trader" according to the French law may be very diflferent from
that of a trader according to our law. So, as to the question whether
or not Vanquelin resided at Orleans when the bills were drawn,—
that also might have been tried and disposed of in the court there.
The force and validity of a foreign judgment, and the grounds upon*
which it may be impeached in the courts of this country, are well
laid down in the case of The Bank of Australasia v. Nias, 16 Q. B.
717 (E. C. L. B. vol. 71), where Lord Campbell, in delivering the
judgment of the court (p. 737) says: "If the judgment was given by
a court 'in foreign country, or in a court of one of our colo- r^ogft
nies governed by a foreign law, how is tl^e cause to be re-tried ^
atnini prius? In the absence of direct authority, it gives us great
satisfaction to think that Lord Denman seems to have taken the same
view of the subject in Ferguson v. Mahon, 11 Ad. & E. 179 (E. C. L.
R. vo^ i^}^ 3 P. & D. 143, and still more distinctly in Henaerson v.
HeodersoD, 6 Q. B. 288 (E. C. L. fi. vol. 51) (a) where he intimates a
clear opinion that 'a plea to an action on the judgment of a colonial
ooart ought to steer clear of an inquiry into the merits of the case ;
for, whateyer constituted a defence in that court ought to have been
pleaded there.' " The sixteenth plea, to the second count, is, that
the plaintiff is not executor or administrator of Vanquelin, deceased.
For the reasons before given in dealing with the second count, I think,
that, as the plaintiff is the donee of the universality of the personal
and real estates belonging to the succession of the deceased, and be-
came thereby entitled to all debts, &c., to which he was entitled,
which by the French law became vested in her personally and abso-
lutely in the same manner as they were vested in him, and she was
entitled in France to demand and sue for the same in her own name
and right, it is quite immaterial whether or not she was executrix in
this country. The eighteenth plea, which is pleaded to both counts,
states that the deceased and the defendant, in France, agreed to pur-
chase for their joint benefit a debt due to one Madame de Quereoque,
and charged upon certain property in France ; that it was agreed be-
tween them that the deceasea should advance the purchase-money,
and that the defendant should accept the bills in the declaration men-
tioned as a security to the deceased in case the debt should not realize
the amount of the purchase-money ; that, except as aforesaid, there
was *never any value or consideration for the acceptance of r*onQ
the bills ; that the deceased recovered a large sum in respect '-
of the said debt, and retained the same; and that the share thereof
belonging to the defendant and so retained by the deceased, was more
than sufficient to satisfy the claim of the deceased in respect of the
said judgment and bills. The effect of this plea is, that this is an
action by the drawer of an accommodation bill against the acceptor,

(a) And lee Henderton •. HtDderson, 11 Q. B. 1015 (B. CUB. Tol. 63). *

870 VANQUELIN ». BOUARD. M. T. 1863.

and thiat there was no valne or consideration for the acceptance. It
seems to me that the answer to that plea, so far as it is pleaded to the
first count, is, that the satisfaction is alleged to have accrued in the
lifetime of the plaintiff's husband, and that the money in respect of
which she is suing was paid by her since his decease. As to the first
count, therefore, the plea fails : but, as to the second county it appears
to me that the eighteenth plea affords no answer.

The result is, that, in my opinion, the plaintiff is entitled to judg-
ment upon all the demurrers, except as to the eighteenth plea; and
that, as to so much of that plea as is pleaded to the first count, there
should be judgment for the plaintiff) and, as to so much as is pleaded
to the second count, judgment for the defendant.

WtLLiAMS, J. — I am of the same opinion. As to the first count, I
think our judgment on the demurrer thereto ought to be for the
plaintiff. I do not consider, that, in so holding, the court will in aay
way depart from or diminish the effect of the rule which has beeua
established by a long series of cases as well at law as in equity upon
this subject, viz. that, in order to entitle a party to sue in any court
in this country, whether of law or of equity, 4n reject of the property
*871 1 ^^ ^^^ personal rights of a deceased person, he must *show that
-' he has obtained probate or letters of administration from the
proper court of this country. That rule was recognised by Lord
Cottenham in Tyler v. Bell, 2 Mylne & Gr. 89, and Price v. Dewhurst,
4 Mylne k Cr. 76; and also by the Exchequer Chamber in Whyte v.
Bose, S Q. B. 498. 507 (E. C. L. B. vol. 48), 2 Gale & D. 812, where
Tindal, C. J., in delivering the judgment of the court, distipctly says^
^-^' It is well established, that, in order to sue in any court of this
country, whether of law or equity, in respect of the personal rights or

troperty of an intestate, the plaintiff must appear to have obtained
otters G^ administration in the proper spiritual oourt of thb country :
•ee the judgment of Sir John NichoU in Spratt v. Harris, 4 Hagg-.
Eccl. R. 405 ; and see also the judgment of the Lord Chancellor in
Price V. Dewhurst" That rule so established is also recognised in
the United States of America, as appears from a note by Mr. Troubat
to his edition of Williams on Executors. But that learned author
goes on to say (and I agree with the qualification) that the rule does
not apply unless the party is suing in right of the deceased. Apply*
ing those principles to the first count, it appears to roe to be plain that
the right which the plaintiff is there seeking to enforce is not a right
which the deceased ever had. It was not a peraonal right which
formed part of his estate at the time of his death : but it was a right
which was acquired by the plaintiff herself sinoe her husband's death.
It was a right which was compounded of a payment made by her and
n judgment obtained by her in a court of competent jurisdiction in
France since his death. The right, therefore, which she is seeking to
enforce by that eount ia not one which was ever vested in the deceasod
#r which could form part of his estate^ but a right which the plaintiff
lierself had acquired, and which she was entitled to assert in her own

»872]

name and in her own *individ ual capacity. These ooosideratioiis
do not apply to the second count. As to that I must confess I
feel some difficulty : but, as my Lord and my Brother Keating have
eomc to the condusion that this count is capable of being construed

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 372

in a waj to wbich I will presently advert, I do not feel justified in
diflbring from them, though I cannot help entertaining some doubt as
to whether that is the proper construction to put upon it. There is
no doubt that by the law erf* this country property which a man takes
as executor may be so dealt with by him as to become his own.
This was established so long ago as the case of Merchant v. Driver, 1
Saund. 307, where it is said, that, " if an administrator, &c., pay with
his own money the debts of the intestate, &g., in such order as the law
appoints, to the value of all the goods, he may lawfully dispose of the
goods as he pleases, and it will not be a devastavit" He becomes in
&ct the purcnaser of the goods. Now, here, the second count contains
an averment, that, on the death of her husband, the plaintiff was
according to the law of France the donee of the universality of the
personal and real estates belonging to the succession of the deceased,
and thereupon became entitled to all debts, claims, and causes of action
which the deceased was entitled to, and the same became and were
according to the said laws vested in the plaintiff personally and
absolately in the same manner to all intents and purposes as they
were vested in the deceased, and that the plaintiff was and is entitled
to demand and sue for the same in her own name and in her own
right. Now, the construction which the rest of the court put upon
that, is, that it appears that the plaintiff has, by some course of con-
dact apd proceeding which is not (and need not be) particularized in
the declaration, herself become according to the law of France the
owner of these *rights, and may enforce them, by reason of her r^ono
undergoing personal and individual liability in respect of them. ^
I must confess I was strongly impressed with the notion that this was
only a disguised averment framed with a view to evade the rule which
requires administration in order to entitle a party to sue in respect of
the personal rights or property of a deceased person, but in substance
amounting to no more than a statement that the plaintiff was the legal
personal representative of her deceased husband. But I am disposed
to assent to the view taken by my Lord and my Brother Keating,
viz. that it does amount to an averment, that, according to the law
of France, the plaintiff, by reason of the liability which her relation
to the deceased's property entailed upon her, acquired a personal and
individual right to enforce this claim, and ne^ not clothe herself
with the character of his personal representative. With respect to
the observations which my Lord has made upon the several pleas
demurred to, it is enough for me to say that I fully concur in them.
Keating, J-(a) — I am of the same opinion. I entirely agree witb
all the observations which have been made by the Lord Chief Justice
upon the first count of the declaration. As to the second count, it
must not be supposed that there is any difference amongst the mem-
bers of the court as to the rule which governs the mode of enforcing
personal rights or claims to property of decea^ persons. That rule
is well established, and nothing in this judgment is intended to shake
it But I agree with my Lord that the second count does sufficientlj
show upon the face of "it^ that, according to the law of Prance, the
phtintiff was entitled (in France) to this succession, and to ane IB

373 VANQUELIN v. BOUARD. M. T. 1863.

♦^741 ^^^P®^^ of i* ^" ^®^ *own name and in her own right. It seems
-I to me that that is>a11eged in the count with sufficient distinct-
ness, and that it is admitted by the demurrer. I also entirely agree
with what has been said with regard to the pleas. At first I was
disposed to think that the thirteenth plea presented some difficulty :
but I think the distinction pointed out by Mr. Smith is well founded.
The judgment of a foreign court may undoubtedly be impeached in
our courts for want of jurisdiction, but not by the denial of any facta
which it was competent to the foreign court to try and which that
court may have decided on the merits. Now, the facts alleged iu the
thirteenth plea clearly would have been properly triable in the
French court. We must assume that they were tried there; and we
cannot re-try them here according to the laws and customs of another
country. I think also that the plea is very loosely framed, and that
it does not contain any distinct allegation that the facts therein stated
would have deprived the French court of jurisdiction in the matter.
It is unnecessary, however, to go into that. The result will be as
my Lord has already stated. Judgment accordingly.

Hodgsouy on behalf of the defendant, asked leave to add a plea tra
versing the law of France as to the matters alleged in the second
count.

Erm, C. J. — We recommend your opponent to assent to that.
You will no doubt arrange it with Mr. Williams.

»o7xr *Be ALDINGTON and HANCOX and CHESSHIRE
^^^J Nov. 22.

Upon A sobmiuion to Arbitration between two individaals (not being pArtnera in trAde) sad
A third part7» where the agreement of reference is signed by one of them thus, — " A. for self and
B./' — on making the sabmiasion a rale of oonrt^ it most be shown \ij Affidavit that A. bad tli«
Anthority of B. to sign for him.

Nbebuam moved to make a submission to arbitration a rule of
court pursuant to the 17th section of the Common Law Procedure
Act, 1854, 17 k 18 Vict. c. 125. The officer had declined to draw-
up the rule without the direction of the court, on the ground that the
agreement of reference did not appear to have been signed by Hancox
or with his authority, — the executing parties being Chesshire and
"Thomas Aldington for self and John Hancox." Aldington and
Hancox were not partners in trade, but were interested in the subject-
matter of the reference as trustees. Aldington and Chesshire appeared
before the arbitrator, but it did not appear that Hancox had. The
award had been made against Chesshire. The learned counsel sub-
mitted that there was no distinction between this and any other
description of agency; and that Hancox might ratify the act of
Aldington at any time, and, the award being in his favour, there could
be no doubt of his doing so. [Byles, J.— Under the 9 & 10 W. 8, c,
15, s. 1, an affidavit of the due execution of the agreement of refer-
ence was required. The words of the 17th section of the Common
Law Procedure Act, 1854, are more comprehensive.]

E&LK, C. J.— Get an affidavit of Aldington or of Hancox stating

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 376

that Aldington was authorized by Hanoox to sign the agreement of
reference for him ; and then it may pass.

An affidavit of Hancox was afterwards produced to the proper
officer, stating, " that the action out of which the agreement of refer-
ence arose had his sanction *and approval, and that Thomas rmQ^ra
Aldington in signing the agreement for himself and the depo- L ^' *'
nent acted therein for the benefit of their joint interest, and as the
deponent's agent, and that the agreement had his sanction and full
concurrence/' and the submission was accordingly made a rule of
court.

BAIBD and Others v. WILLIAMSON and Others. Nov. 13.

Tbe owner of a mine at a higher level than an adjoining mine haa a right to work the whole
of hiB mine in the nsaal and proper manner for the purpoie of getting oat the minerals in any
pert of hia mine ; and he ii not liahle for any water whieh flows by gravitation into sneh
nQoining mine from works so oondaeted. Bat he has no right by pumping or otherwise to bo
•a active agent in sending water from his mine into the adjoining mine.

This was an action by the owners of a mine against those of an
adjoining mine for so working as to flood the mine of the plaintiffs.

The first count of the declaration stated, that, before and at the
time of the committing of the grievances by the defendants as there*
inafter in that count mentioned, the plaintiffs were possessed of a
certain ironstone mine lying and being in a certain vein or seam of
ironstone called the red shagg ironstone seam, [which was a stratum
of such a nature as to allow water to percolate and pass through it,
as the defendants then well knew] ;(a)and the defendants before and
at the time aforesaid were also possessed of certain ironstone mines
lying and being in the same vein or seam near and adjoining to the
said mine of the plaintiffs, but being on a higher level than the said
mine of the plaintiffs, so that the water introduced *into the ri^^onn
said vein or seam in the defendants' said mines would run ^
down from the same and pass into the plaintiffs' said mine from the
said mines of the defendants, the stratum or floor on which the said
vein, seam, and mines lay being impervious to water, and by means
thereof, and of the dip or inclination^ thereof, preventing such water
from escaping deeper into the earth of otherwise than into the plain*
tiffs' said mine, as the defendants then [also] well knew : Yet that the
defendants, intending to escape the expense of themselves raising to
the surface of the earth the water next thereinafter mentioned, and
to throw that expense upon the plaintiffs, by means of certain pump-
ingengines and of certain cruts or openings made by them between
the said stratum of ironstone and divers lower strata in the earth in
which large quantities of water arose, and in divers whereof the
defendants were then working or preparing to work the mines, wrong-
fully introduced and threw into their said first-mentioned mines great
quantities of water arising in and coming from the said lower strata,
and such water ran down from such mines of the defendants to the

(a) The words within hraokets were after the demurrers were disposed of strack ont, and
thoso in the foot-notes inserted in the Tarions parts of tbe pleadings hj arrangement between tho
partias : and tlie leoond plea and tbe demurrer thereto were stmok out of the record.

377 BAIRD v, WILLIAMSON. M. T. 1863.

1)oandary of the [plaintiflb' portion of the said stratum of iroDStone],(a)
and passed into and through the same and into the said mine of the
plaintiffs, — by means whereof the plaintiffs were hindered and pre-
vented from working their said mine so conveniently and profitably
as they otherwise might and would have done, and were put to great
expense in pumping and raising the said water from their said mine
to the surface of the earth.

The second count stated, that, before and at the time of the com-
mitting of the ffrievances by the defendants as thereinafter in that
count mentioned, the plaintiffii were possessed of a certain other
ironstone mine lying and being in a certain vein or seam of
*3781 *^^^^s^°^ called the red mine ironstone seam [which was
-la stratum of such a nature as to allow water to percolate and
pass through it, as the drfendants then well knew] \ and the defimd-
ants before and at the time last aforesaid were also possessed of
certain other ironstone mines lying and being in the same vein or seam
near and adjoining to the said last-mentioned mine of the plainti£b^
but being on a higher level than the said last-mentioned mine of
the plaintiffs, so that water introduced into the said last-mentioned
vein or seam in the defendants' said last-mentioned mines would ran
down from the same and pass into the plaintifb' said last^mentioned
mine from the said last-mentioned mines of the defendantSi the stratum
or floor on which the said last- mentioned vein, seam, and mines lay
being impervious to water, and by means thereof^ and of the dip or
inclination thereof, preventing such water from escaping deeper into
the earth or otherwise than into the plaintiffs' said lastomentioned mine,
as the defendants [also] then well knew : Yet that the defendants, in-
tending to escape the expense of themselves raising to the surface of
the earth the water next thereinafter mentionedi and to throw that
expense upon the plaintiffs, by means of certain pumping-engines and
of certain cruts or openings made by them between the said lasU
mentioned stratum of ironstone and divers lower strata in the earth
in which large quantities of water arose, and in divers whereof the
defendants were then working or preparing to work the mines, wrong-
fully introduced and threw into their said mines, in this count first
mentioned great quantities of water arising in and coming from the
said lower strata, and such water ran down from such last-mentioned
mines of the defendants to the boundary of the plaintiffs' [portion of
*8791 ^^^ ^^^ last-mentioned stratum of ironstoneK5) and passed *into
^ and through the same, and into the said last-mentioned mine
of the plaintifGa, — by means whereof the plaintiffs were hindered and
prevented from working their said last-mentioned mine so conveni-
ently and profitably as they otherwise might and would have done^
and were put to great expense in pumping and raising the said water
from and out of their said last-mentioned mine to tl^ surface of the
earth.

Second plea, to the first and second counts respectively, that
tne said veins or seams of ironstone in those eounta respectively
mentioned were not respectively strata of such a nature as to allow
water to percolate and pass through them respectivelv, nor ooald
water introduced into the said veins or seams respectively in the de-

COMMON BENCH REPORTS. (15 J. 800TT. N. S.) 37»

foDdants' mines in those coants respectively mentioned ran down from
the same and pass into the said mines of the plaintiffs in those coants
respectively mentioned, as in those coants respectively alleged.

Third plea, to the first and second counts respectively, that the said
cmts or openings in those coants respectively mentioned were made
by them as in those coants respectively mentioned, for the parpose
of reaching th^ said lower strata in the earth, and of working, getting,
and winning the mines and minerals of them the defendants sitaate in
the said lower strata respectively, and not for any other parpose, and
were so made by them according to the asaal, proper, and recognised
manner and coarse of mining, and were so maae with all due care in
that behalf; that the said great quantities of water in those coants
respectively alleged to have been introduced and thrown by the de-
fendants into their said mines in those coants respectively mentioned,
by means of the said cruts or openings and of certain pumping-

ot the defendants by gravitation and by the action of other natural
forces independently and irrespectively of any pumping or drawing
of the same by the aefendants; and that the said water afterwards ran
and passed from the said last-mentioned mines of the defendants to
and into the said mines of the plainti£& in those counts respectively
mentioned under^ound, by natural percolation through the strata of
the said last-mentioned mines of the defendants and the plaintififs re-
speotively, and not otherwise.

The defendants also demurred to the first and second counts, the
groand of demurrer alleged being 'Hhat those counts do not show any
wrongful act done by the defendants, or any invasion by them of any
right or easement to which the plaintiflEs are entitled.*^ Joinder.

The third count of the declaration stated, that, before the commit-
ting by the defendants of the grievances thereinafter mentioned, the
defendants were possessed of divers mines and strata of ironstone
lying in and ander certain land, which strata were called the red
shagg ironstone and the red mine ironstone, and also of divers other
mines and strata of minerals lying under the said mines and strata of
ironstone in that count mentioned; and the defendants, for the pur-
pose of getting rid of the water from the mines and strata so as afore-
said lying anoer the said ironstone, made certain cruts or communica-
tions betweea the said lower strata and the said strata of ironstone,
and thereby and by means of pumping and otherwise conducted,
ndsed, and introduced great quantities of the water arising in the said
lower strata into the said mines and strata of ironstone of which the
d^Midants ^ere possessed as in that count before mentioned, r^Q^t
and condoeled soon water to certain reservoirs at the foot of a ^
certain pumping-pit of tixe defendants, from and out of which the de-
fbndants by means of certain engines and pumpa raised the said water
^rongh the said pumping-pit to the surface of the earth, and tbeie
dbeharged H. ana by that means cheaply and conveniently to them-
aolTes canied en their works and got rid of the water from the said
lower strata : tiiat afterwards, and while the defendants were getting
rid of tilie said water fjN>m the said lower strata by the means and sys*

881 BAIRD V. WILLIAMSON. M. T. 1868,

tern aforesaid, the plaintiffs were possessed of parts of the said tvo
strata of ironstone adjoining to the parts thereof so possessed by tb^
(defendants as in that count before mentioned, and, being so possessed,
worked mines therein and got out thereof large quantities of ironstone,
and thereby left large unfilled hollows or spaces in their said mines
and parts of the said strata of ironstone : that the* said strata of iron-
stone were of such a nature that water could not be kept from passing
from one excavated part thereof to any other bj means of a barrier,
but were pervious to water, which would and did readily pass through
the same, as the defendants at and before the time in that count afore-
said well knew : that the inclination of the said strata was upwards
from the plaintiffs' to the defendants' portion thereof, and that the
strata or floors on which the said veins or seams of ironstone rested
were impervious to water, so that water introduced into the defend-
ants' portion of the said strata of ironstone did not nor would sink
into the earth, but descended towards the defendants' said portion
thereof, and when the pumps of the defendants at their said pumping*
pits were stopped, such water would rise above the said reservoirs and
*8821 ^° ^^ defendants' mines against the boundary of the *plaintil&'
-' said portions of the said seams of ironstone, and would escape
through the same into the plaintiffs' said mines, and fill the same and
the said hollows and spaces, — all which the defendants well knew
before and at the time of committing the said grievances in that count
mentioned : Yet that the defendants, intending to escape the expense
of themselves raising to the surface of the earth the water from the
aforesaid lower strata, and to throw that expense upon the plaintiff
after the plaintiffs had begun to work and whilst they were working
their said mines of ironstone, wrongfully continued to introduce in
manner aforesaid the water from the said lower strata into their said
strata of ironstone, and wrongfully discontinued to work their pumps
at the said pumping pit or otherwise to raise the said water'which
they so continued to introduce as aforfesaid to the surface of the earth,
and allowed the same to rise above the levels of the said reservoirs, and
above the levels of the plaintiffs' said boundaries, and to pass into the
plaintiffs' said mines and the hollows and spaces aforesaid, whereby
the same were filled and overflowed, and the plaintiff were unable to
work their said mines so conveniently and advantageously as they
otherwise might and would have done, and were put to great expense
in pumping and otherwise getting rid of the said water from their
saia mines.

^ Fifth plea, to the third county that the said oruta and commanica-
tions in that count mentioned were made by the defendants for the
purpose of reaching the said lower strata, and of working, getting,
and winnine the mines and minerals of them the defendants, situate
in the said Tower strata, and not for any other purpose, and were so
made by them according to the usual, proper, and recognised manner
And course of mining, and were so made with all due care in that
*8831 ^^^^^^ ' *^^^ ^^^ ^^^ ^^^ great quantities of water in thi^
-• count alleged to have been conducted, raised, and intrcduc^
into the said mines and strata of the defendants as therein mentioned,
and to have been conducted to the said reservoirs by means of the
said cruts or communications, and of pumping and otherwise, were

COMMON BENCH REPORTS. (15 J. SCOTT. N. S ) 388

certain quantities of water whicli ran, flowed, and passed by, through,
and along the said cruts or communications from the said lower strata
respectively to and into the said other mines and strata of the de-
fendants in that count mentioned, by gravitation and other natural
forces independently and irrespectively of any pumping or drawing
of the same by the defendants.

The defendants also demurred to the third count, the ground of
demurrer alleged being the same as that alleged for demurrer to the
first and second counts. Joinder.

The plaintiffs demurred to the second plea on the ground that, *
"even if there was no barrier at all left by the plaintiffs, the defend-
ants cannot justify the introduction of foreign water into the mines."
Joinder.

The plaintiffs also demurred to the third and fifth pleas, the ground
alleged being, '* that, although the mode adopted be a proper and re-
cognised mode of mining, it will not justifv the introduction of foreign
water into a vein of mineral, when it damages an adjoining mine
belonging to another owner in the same vein." Joinder.

The plaintiffs also new-assigned that they sued not only for the
grievances in the third and fifth pleas admitted, but also for similar
grievances in respect of water which ran, flowed, and passed by,
through, and along the said cruts or openings from the said lower
strata respectively to and into the said other mines of the defendants
by means of pumping and drawing the same by the defendants.

♦The defendants pleaded to the new-assignment, — first, not r^ooA
guilty, — secondly, that the said cruts or openings in the new- ^
assignment mentioned were made by them for the purpose of reaching
the several lower strata in the earth in the several counts of the decla-
ration mentioned, and of working, getting, and winning the mines and
minerals of them the defendants situate in the said lower strata respect-
ively, and not for any other purpose, and were so made by them ac-
cording to the usual, proper, and recognised manner and course of
mining; that, after the same had been so made, the defendants were
engaged in working, getting, and winning certain parts of the said
mines and minerals of them the defendants situate m the said lower
strata, and were so working, getting, and winning the same according
to the usual, proper, and recognised manner and course of mining; that,
in the course and for the purpose of such last-mentioned working,
getting, and winning, it became and was necessary for the defendants
to pump and drain away the water in the said new-assignment men-
tioned from the said last-mentioned parts of the said mines and mine-
rals, and the defendants did accordingly pump and drain away the
said water ; that, by reason of such pumping and draining, the said
water ran, flowed, and passed by, through, and along the said cruts
and openings into certain other parts of the mines of the defendants,
that is to say, the several upper strata in the declaration mentioned ;
and that the ^aid water afterwards ran and passed from the said last-
mentioned mines of the defendants to and into the mines of the plain-
tifiEs underground by natural percolation through the strata of the said
last-mentioned mines of the defendants and of the plaintiff respectively,
and not otherwise, — which were the grievances above newly -assigned*

384 BAIBD v. WILLIAMSON. M. T. 1863.

^651 ^^ plaintifi demarred to the second plea to the ^new-assign-
^ J raent, the ground of demurrer alleged being, •' that, although
it be a usual, proper, or recognised mode of mining, it will not in lav
justify pumping foreign water into a vein of mineral, when it dam-
ages an adjoining mine belonging to another owner in the same vein.^'
Joinder.

John Gray, Q. C, for the plaintiflf8.(a) — Neither of the pleas ia
question affords any answer to the plaintiffs' complaint The defend-
ants clearly had no right by making cruts to alter the natural flow
of the water from their mine, and cause it to flow into the plaintifi'
mine : still less had they a right to do so by raising the water bj
artiflciid means from the lower to the upper part of their mine, and
thereby increase the natural flow into the mines of the plaintifis. Tbe
general expressions thrown out by the Court in Smith v. Kenrick, 7
U. B. 615 (E. C. L. R. vol. 62), do not affect this case: nor do the
cases of Acton v, Blundell, 12 M. & W. 324, or Chasemore t;. Bich-
♦8861 ^^^' ^ Hurlst. & N. 168, 7 House of *Lords Cases 849, apply.
^ The Lord Chancellor, in the last-mentioned case, puts it very
much as Tindal, C. J., did in giving the judgment of the Exchequer
Chamber in Acton v. Blundell, where it was held that the owner of
land through which water flows in a subterraneous course has no
right or interest in it which will enable him to maintain an action
against a landowner, who, in carrying on mining operations on bia
own land in the usual manner, drains away the water from the land
of the first-mentioned owner, and lays his well dry. ** We think/'
said the Chief Justice, " the present case is not to be governed by the
law which applies to rivers and flowing streams, but that it rather
falls within that principle which gives to the owner of the soil all that
lies beneath his sur&ce ; that the land immediately below is his pro-
perty, whether it is solid rock, or porous ground, or venous earth, or
part soil part water; that the person who owns the surface may dig
therein, and apply all that is there found to his own purposes at his
free will and pleasure ; and that, if in the exercise of such right, he
intercepts or arains off the water collected from underground springs
in his neighbour's well, this inconvenience to his neighbour falls
within the description of damnum absque injurifi, which cannot be-
come the ground of an action." It is no answer to the plaintiSs'
complaint for the de£mdants to say that what they have done was
done in the usual and ordinary course of good mining.

H, James (with whom was Horace Lloyd)^ contii.(&) — ^The pleas

(a) The peints nmrktd for wgamMit on tho port of Um pUiBtifli ww m foUowi >-
" 1. The first end seoood ooontf eoeh ihows o come of octlon, bj ihowiiig thet the deftintMli
iatrodoeed into the refaif water not natarallj arising in the Toini^ hat coming lh»ia otkac
Bonroef, knowing thai raoh water wonld find its way into the plaintiffs* minee:

<«a. That the nanner In wUoh tho water flade He w«jp into liw pkliitias* aiaee Is inwtsrisl^
whether hy pereolation throvgh a harrier or from the aheenoe of ai^ hHrriei^ if the watsr be
Ihreiga water not natnial^j arising or flndlii^ ita w«j into the vata^and theiafiise the ssssad
pleaiihad:

«8L That thotUfd and Mtt ploM and the eeeoad plea to the aeir-anigaaMHt aiehiiM

the groaad tet> aHh««h th» aoAs adafted hj the detedanta he a pwpsr and les n ii i wi

mode of BiiaiBg,it will ant jae tl«r the latradaetiea at liraaiga waUr UHe a eafai of aiMrit

whers it damages an a4ioiniBg mine heloaging U another owner ia thaiaaU eela of miasmL*

(ft) The points marked for argnment on tte part ofthe defendants were as foUows:—

" L That the flrs^ seooad, aad third eoaaU of the dedaratioa are respeearoly bod ia lak.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 386

allege that the defendants have *done no more than work their r^oo^
mine according to the usual and approved course of mining in '•
the district. They had an undoubted right to get all the ironstone
from their mine, regardless of the natural consequences which might
result from their so doing. That is the effect of the judgment of this
court in Smith v. Kenrick and of the Exchequer Chamber in Acton
V. Blundell. The only obligation which the law imposes upon the
defendants, is, that, in working their mines, they shall not be guilty
of negligence, or wilfully damage *the plaintiffs! mine. [Erle, r^ong
C. J. — The defendants in working their mine had no right to ^
interfere with the natural flow of the water. If by gravitation it will
go away, so be it: but they must not direct it.] The cruts were not
made for the purpose of conducting the water in a given course, but for
the purpose of getting the ore in the most convenient manner. Smith
V. Kenrick distinctly lays it down that the rights and duties of one
mine-owner are wholly independent of the wprking of his mine by an
adjoining owner. In delivering the judgment of the court there,
Cresswell, J., says,— 7 C. B. 564 (E. 0. L. R. vol. 62),— ''Treating the
question as a new one, not governed by the authority of any decided
case, — ^for, all those referred to are distinguishable, — it would seem to
be the natural right of each of the owners of two adjoining coal-
mines, — neither being subject to any servitude to the other, — to work
his own mine in the manner most convenient and beneficial to him-
self, although the natural consequence may be, that some prejudice
will accrue to the owner of the adjoining mine; so long as that does
not' arise from the negligent or malicious conduct of the party."
[Erle, C. J. — It can hardly be necessary to say that there is no such
thing as a wrong, without pre-supposing a right which is violated.]
There is greater diflSculty in the question, undoubtedly, where artifi-
cial means are resorted to for the purpose of raising the water to a
spot where it would not otherwise have flowed. But there is no alle-
gation of improper mining here. On the contrary, it is averred by
the pleas, and admitted by the demurrers, that what the defendants

sUnee, and that none of them show any invasion hj the defendants of a legal right existing in
the platntilTs, or any good cause of action against the defendants :

"3. That, at unj rate, the second, third, and fifth pleas are respectively good and valid'
answers to the eoonts to which they are respectively pleaded, and are respectively good in snh*

**l. That the new-assignment of the plaintiffs to the third and fifth pleas respectively is hadi
in sabstanee, and that the additional facts therein stated make out no caase of action by the
plahitiffs against the defendants :

''4. That the second plea to the new-assignment is good in substance, and is a good and'
▼alM answar to the new-assignment :

" 5. That the defondants are at liberty to drain, draw, pump, or otherwise remove water fromi
one part of their own mines to another part in whatever manner they may think fit, and are
not liable if by reason thereof such water should percolate through strata pervious to water
into the mines of the plaintiffs, and cause damage there :

"1 That, at any rate, the deftodaats are not liable for such consequences, if such droning,
4nwing, pumping, or otherwise removing of the water within their own mines be done solely
for the purposa of mining, and in the usual, proper, and recognised manner and course of
miaiag:

"7. That, at any rate, the defendants are not liable for such consequences, if they do not
tew or pump such water from one part of their mines to another part, bat the water runs and
lows within their mines f^om one part to the other by gravitation and other natural foreea
■lmg*passages and openings made solely for the purpose of mining, and in the usnal, properi.
■ad xeeognised manner and oourse of mining."
C. B. H. 8., VOL. XV. — 16

888 BAIRD v. WILLIAMSON. M. T. 1863.

did was done in the usual and accustomed course of good mining.
The substantial causes of complaint alleged in the declaration and in
the new assignment are all answered by the pleas.
♦S891 ^^}f> ^° reply. — As to the flow of water by means *of the
J cruts,. It is true that it is alleged that the cruts were made for
the more convenient working of the defendants' mine ; but enough ia
not alleged to constitute a defence. [Byles, J. — The allegation is,
that the defendants committed no trespass, and that they did what
they did in the usual and proper course of mining.] As to the pump-
ing up the water from the lower level, and so causing it to flow into
the plaintififs' mine, it is distinctly charged in the declaration and new-
assignment, and not denied or excused by anything that is alleged in
any of the pleas. The following authorities were referred to,— The
Duke of Beaufort v. Morris, 6 Hare SiO ; Yool on Waste 136 ; and
Bainbridge on Mines 486. Cur. adv, vuU,

Erlk, 0. J., now delivered the judgment of the court :(a) —
In this case the plaintiffs complained of the flow of water into their
imine from the defendants' mine. The defence was, that the flow arose
rfrom mining works carried on with due skill, in a customary and pro-
sper manner. As the complaint related to three kinds of foreign
^ater, the questions raised may be better understood by a short de-
rfioription of the local relation of the two properties, which was agreed
to be the effect of the pleadings. The two mines adjoined. The
•defendants' was the upper, the plaintiffs' the lower mine. In each
mine were two seams of ironstone, distant a few fathoms from each
other. Each seam cropped out on the surface of the defendants' land,
and extended with a parallel dip^down through the defendants' land
into and through the plaintiffs' land. Each party had worked out the
•3901 ^PP®^ ^^ ^^^ *^^ seams of •ironstone, which we call No.
-I I ; and the plaintiffs had left no barrier to stop back the water
flowing down from the defendants' works in that seam ; and of this
water the plaintiffs did not complain, it being very clear, from Smith
v, Kenrick, 7 C. B. 515 (E. C. L. R. vol. 62), that no complaint could
be sustained. In order to get the mineral in the seam which we call
No. 2, the defendants made a crut or passage from the first seam to
the second seam, so constructed as to be on an incline from a part of
the seam No. 2 to a part of the seam No. 1. Although No. 2 lay
ander No. 1, yet the head of the crut in No. 2 was at a higher level
than the mouth of the crut in No. 1. This crut was made in the
usual course of skilful mining, for the purpose of getting the mine-
•rala. The defendants' counsel explained it to be for the purpose of
conveying minerals from the seam No. 2 down the crut to the seam
No. 1, and. down that «eam to the shaft therein, so as to be raised to
the surface. While the crut effected that purpose, at the same time
the water from the works in the seam No. 2 flowed down through it
into the seam No. 1, and so onwards into the plaintiff' mine.

One complaint of the plaintifEs wjia of this water; and they con-
tended that they were not obliged to receive through seam Na 1
more water than that which flowed from the works therein, and might
maintain their action in respect of the water so flowing from the seam

(a) The judges present at the argument were, Erie, C. J., Williams, J., Bjles, J., and Ecst-

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 390

No. 2 : but on this point we think that the plaintiffs fail. The owners
of the higher mine have a right to work the whole mine in the usual
and proper manner, for the purpose of getting out any kind of mine-
ral m any part of that mine ; and they are not liable for any water
which flows by gravitation into an adjoining mine from works so con-
ducted. We think that the law was correctly laid down to that effect
in Smith v. Kenrick. If this crut had been made for the *pur- r^oQi
pose of turning water into the plaintiffs' mine which would not '-
otherwise have arrived there, and not for the purpose above described,
we consider that the action would lie. It appears in Smith v. Ken-
rick, where the barrier of the lower mine had been wrongfully pierced
for air-holes by a former occupier of the upper mine, that a subse-
quent occupier of the upper mine had no right to make a construction
at his lower boundary for the sole purpose of turning some of his
water through these openings. By paying money into court in an
action for that wrong, he admitted that his exemption from liability
was confined to the water which flowed by the laws of nature into
the plaintiflls' mine from works conducted for the purpose of getting
minerals.

The plaintiffs further complained of other foreign water which had
flowed into their mine. This water is alleged in these pleadings to
be raised by pumping to a level trough and to cause such a flowing.
The counsel described the pumping to be for the purpose of getting
other mineral, lyin^ deeper than the two seams above mentioned ; and
the pump was so placed that a crut led therefrom to the head of the
crut above mentioned, at such a level as that the water from the pump
flowed down the two cruts into seam No. 1, and so itito the plaintifis'
mine. In respect of this water, we think that the action lies.

The defendants, as occupiers of the higher mine, have no right to
be active agents in sending water into the lower mine. The plaintiffs,
as occapiers of the lower mine, are subject to no servitude of receiv-
ing water conducted by man from the higher mine. Each mine-owner
has all rights of property in his mine, and, among them, the right to
get all minerals therefrom, provided he works with skill and in the
usual manner. And if, while the occupier of a higher mine ri»g92
^exercises that right, nature causes water to flow to a lower ^
mine, he is not responsible for this operation of nature. If the owner
of the lower mine intends to guard against this operation, he must
leave a barrier at the upper part of his mine, to bay back the water
of his higher neighbour. The law imposing these regulations for the
enjoyment of somewhat conflicting interests, does not authorize the
occupier of the higher mine to interfere with the gravitation of the
water, so as to make it more injurious to the lower mine or advanta*
geous to himself.

This appears to us to be the law. For authority, we refer both to
Smith t;.Xenrick and also to the question left to the jury in Acton v.
Blundell, 12 M. k W. 324.

The judgment will therefore be for the plaintiffs on the demurrer
to the declaration and to the plea to the new-assignment, and for the
defendants on the demurrer to the other pleas.

Judgment accordingly.

392 WHITELEY e. ADAMS. M. T. 1863.

WHITELEY V. ADAMS. Nov. 23.

A eommnnicatioD made boniL fide apon any sabjeet-matter in which the party eommnnicatiaf
haa an interettf or in reference to which he haa, or honestly belicTes he haf, a dutjf, ii privileged,
if made to a person having a corresponding interett or duty, although it contain criminatory
matter, which, without this privilege, woald be slanderous and actionable.

A., a well-esteemed member of a congregation in London notorious for its extreme high*
ohnroh notions, being on a visit to a Mrs. H. (also a member of the same congregation), who
was residing for a time at 6., in Berkshire, was by her introduced to B., the rector of the parish,
a gentleman of similar religions tondencies. The latter introduoed A. to one of his parishionen,
a farmer named F., with whom A. soon became on terms of intimacy, staying on several oeea-
sions at F.'s farm with different nuembers of his family. After the lapse of some months, F.,
conceiving that he had ground of complaint against A. with regard to some private transaetioas
which he communicated to B., brought an action against A. for board and lodging and the
price of a horse which he alleged had been bought of him by A. A. resisted the claim ss to
the board and lodging on the ground that he and his family had resided at F.'s farm as gaesti
and not as lodgers, and the claim as to the horse on the ground that he had only taken it apon
triaL

In this steto of things, one C, one of the curates of the London congregation, wrote to B.
asking him to consent to act with him as arbitrator in the dispute between F. and A. B.
declined ; whereupon C. again wrote to him, urging it upon him as a sacred duty to aid ia
averting what he called a scandal from a member of his (G.'s) congregation. In reply to this
letter, B. wrote to C. giving him his reasons for declining to act as arbitrator, imputing to A.
very gross misconduct, and adding, '' I think it my duty to unmask him to you."

This letter having been handed by C. to A., and the latter having commenced an action for
a libel against B., B. came to London, and called on Mrs. H., to whom he deteiled some of the
oharges against A. That lady intimated her conviction that B. was mistaken in his opinion of
A., but said she would see him on the subject and communicate with B. the resulr, adding thst
she was quite sure A. would tell her the truth. Mrs. H. afterwards wrote to B. (with A.'a
knowledge), telling him that A. denied all the charges alleged against him, and reiterating her
confidence in A.'s integrity. B. thereupon wrote in answer to Mrs. S. substantially repeating
the charges, saying, as to one of them, that there was not a shadow of doubt but that the eom-
platnt was correct, and that if A. denied it in the witness-box he would be Indioted for peijory.
This letter was also handed to A. (who, knowing it was coming, called on Mrs. H. for it), lad
a second action was the result.

The two actions having been consolidated, the jury at the trial found that the charges con-
tained in the letters were unfounded, but that B. was not actuated by malice : —

Held, that both letters were privileged, on the ground that they were written by the defend*
ant in what he believed to be the honest discharge of a social and moral duty, and on a subject
matter in which the writer had an interest in making the communications, and the penoni
respectively receiving them had an interest in the receipt of them, — Byles, J., confining his
judgment, as to the second letter, to the latter ground.

Two actions for libel were brought by the plaintiff against the
defendant.

*3931 '^^^ declaration in the first action stated that the *defendant
J maliciously wrote and published of the plaintiff a letter con-
taining the words, figures, and abbreviations following, that is to say,
" Stockcross Parsonage, March 17th. Dear Sir, — I cannot, I am sorry
to say, accede to your request, for the following reasons, — first, because
Mr. Fowler's lawyer, Mr. Smale, whom I know to be an honourable
man, will, I am sure, be quite ready to compromise the matter instead
of carrying it into court, if Mr. Whiteley will make fair overtures to
him, — secondly, because Mr. Whiteley's conduct h^s been so bad that
I should be sorry to have my name in any way associated with him
or his affairs. To give you an outline of all the charges which I hear
laid against him would occupy more time than I have to spare this
morning ; but I will mention two or three which I believe to be well
founded. Though only a lawyer's clerk, he passed himself off for
some time in this parish as a lawyer of considerable wealth, and talked

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 393

largely about his landed property in Kent. This enabled him to
impose on the rustic simplicity of the Fowlers in a way which he
would not otherwise have done. Under the impression that r^gn^
''he was a gentleman of considerable means, they allowed him '-
from time to time to make himself an unbidden guest at their house,
and to send his son to stay with them for the benefit of his health for
a month or two. They also sent him, at his request, poultry, &o., &c.,
and were given to understand by him that full compensation would
be made to them for all the trouble and expense to which he had put
them. But, with the exception of a shawl sent by Mrs. Whiteley to
Mrs. Fowler, they have received no payment whatever. Last of all,
he bought a horse of Mr. Fowler, which is not yet paid for ; and his
attempts to avoid payment have been characterized by extreme mean-
ness, if not downright dishonesty. There are unpleasant rumours
about his being immoral and intemperate : but, how far they are true,
I am unable to say. It grieves me very much to make these state-
mfents respecting a man who evidently wishes to be considered a reli-
gious man and a good churchman : but, inasmuch as he said a great
deal to my parishioners about his intimacy with the clergy of St.
Barnabas, I think it my duty to unmask him to you ; and I should be
very thankful to be enabled to tell some of my neighbours that his
position at St. Barnabas is not quite what he led them to suppose it to
be, and especially that his official connection with the English Church
Union had ceased," — by means of the committing of which grievance,
the plaintiff had been and was greatly injured in his character and
credit, and brought into public scandal and disgrace, &c.

To this count the defendant pleaded not guilty, and a plea justifying
the truth of the statements contained in the letter.

The declaration in the second action stated that the defendant falsely
and maliciously wrote and published of the plaintiff a letter contain^
ing the words, •figures, and abbreviations following, that is r^ogx
say, — " Stockcross Parsonage, May 6th. My dear Mrs. Hurry, ^
— Time will show whether I have been misinformed or not respecting
Mr. Whiteley. A writ has been served upon me, and a public inves-
tigation must therefore take place. If he states on oath in the witness-
box what he has stated to you, especially as to the charge of assault,
he will be most certainly prosecuted for perjury; for, there is not a
shadow of a doubt but that the complaint of the servant girl is cor-
rect. She is a person of unblemished reputation, and a communicant;
and no one can listen to her statement, as I have done, without be-
lieving everj word of it. As to the story about the farmer's wife and
the beer-drinkiog at 10 o'clock on the Sunday morning, I do not
attach much importance to it They are charges of a very minor con-
sideration : but the alleged assault is a very weighty accusation. I
am sorry I shall not be able to call on you again for some time. Until
the trial comes on I shall be hardly able to leave home : but, if yoa
have any inclination to ask for further information and details, my
attorney, Mr. Smale, will be happy to see you. With kind regards
to Miss Hurry, sister Pauline, and yourself, believe me," &c., — by
means of the committing of which grievance the plaintiff had been
and was greatly injured in his character and credit, and brought into
pablic scandal and disgrace, &;c.

3d5 \VHITEL£Y v, ADAMS. M. T. 1863.

To this count the defendant pleaded, — first, not guilty, — secondly,
.that the plaintiff^ being a married man, indecently assaulted the ser-
yant girl referred to in the said letter, and then indecently and dis-
honourably solicited her to permit an illicit and adulterous intercourse
.between the plaintiff and her, of which the said servant girl com-
plained, and the plaintiff made a false statement to the person to whom
the said letter was addressed with respect to the matter aforesaid;
♦^961 ^"^^^^^^^^^i ^^^ because the plaintiff had committed such mat-
•^ ters as alleged, the defendant published the said alleged libel.

The actions were consolidated by a judge's order.

The cause was tried before Erie, C. J., at the sittings in London after
last Trinity Term, when the following facts appeared in evidence i-*
The plaintiff held an inferior official appointment in the Chambers of
Yice-Chancellor Wood, and was an apparently zealous and exemplary
jnember of the congregation of St. Barnabas, Pimlico, whose peculiar
notions of the christian doctrines are so well known. The defendant
is the incumbent of the church of Stockcross, in the county of Berks.
In the Spring of the year 1860, a lady named Hurry, who with her
daughters took a great interest in all matters affecting the church and
congregation of St. Barnabas, and who was on terms of intimacy with
'the plaintiff, resided for a few weeks at Stockcross. The plaintiff
visited her there, and was by her introduced to the defendant. The
defendant introduced the plaintiff to one Fowler, a farmer in moderate
circumstances residing in his parish; and ultimately the plaintiff
ibecame an inmate at I^owler's farmhouse, and continued from time to
time to visit him, staying at intervals with his wife and children there,
And being supplied with board and lodging, without, as it afterwards
turned out, any distinct understanding as to the relation in which the
parties stood towards each other. Matters so remained until towards
Hbe close of the year 1861, when Mr. Fowler made a demand upon the
iplaintiff for board and lodging and also for the price of a horse which
the plaintiff had brought to London with him ; and ultimately Fowler
brought an action against the plaintiff for those and other claims.
This action was resisted by the plaintiff on the grounds that he and
♦3971 ^^^ family had resided •at Fowler's in the character of a guest
-' and not in that of a lodger, and that the horse had not been
f)UFCihased by him, but only taken on trial. Whilst this action was
pending, the Bev. Mr. Cleaver, who was one of the assistant-curates
of St. Barnabas, wrote to the defendant (who it appeared was a gen-
tleman whose religious notions coincided with those entertained by the
4nembers of St. Barnabas) to entreat him to use his influence with
Fowler to allow the dispute between himself and the plaintiff to be
settled by arbitration,* and proposing to the defendant to act with him
as arbitrators between them. The defendant to this letter sent an
answer declining in general terms to interfere in the matter. The
Bev. Mr. Cleaver thereupon wrote to the defendant again in strong
terms urging him to accept the office of mediator, conjuring him as a
christian minister to do his utmost to avert so Rreat a scandal to the
congregation of which he was a well-wisher, and pointing out to him
the injurious consequences which might result from his refusal. Upon
receipt of this letter, the defendant addressed to the Bev. Mr. Cleaver
the letter which formed the subject of the first action, — ^and the gen-

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 897

tieman to i;?hom it was addressed thought fit to hand it to the
plain tiff.(a)

After the commencement of the first action, the defendant, — who
had been informed by Fowler of conduct on the plaintiff's part, which,
if true, was very disgraceful, and which had influenced the defendant
in declining to take upon himself the oflice of arbitrator between
them, — came to town and called upon Mrs. Hurry, and in conversation
with her communicated some particulars of the plaintiff's alleged
misconduct; amongst others, of an attempt on his part to invade
•the chastity of a female servant in Fowler's employ. That r^ogg
lady expressed her strong conviction that the plaintiff was ^
incapable of acting as he was represented to have acted, but said that
she would see the plaintiff and ask him ; adding that she was quite
sure he would tell her the truth. Mrs. Hurry accordingly saw the
plaintifti and she afterwards (with the knowledge of the plaintiff)
wrote to the defendant informing him that the plaintiff deniea all that
had been imputed to him.

Mrs. Hurry's letter was as follows : —

''Stone House, May 3d.

** My dear Mr. Adams, — I write to tell you that I feel confident that
you have been misinformed about Mr. Whiteley. I have seen him,
and told him what was standing against his character. He assured
me that there is not the slightest foundation for what is reported of
bim. He positively asserts that he never drove from Newbury alone.
Afker my telling him of the pretty farmer's wife, it brought to his
recollection having driven from the market at Newbury with Mr. and
Mrs. Fowler, when they overtook upon one of the hills a nice-looking
woman carrying a great heavy baby in her arms, and looking fatigued
to death. They stopped and took her up and drove her home, and
had to go over such a bad bit of road to get into their way home, that
Mrs. Fowler was frightened to death, and I believe got out. This
circumstance marked it in his recollection : and he confidently states
that that was the only circumstance which at all agrees with the
report. As to the history of the maid servant, he denies the possi-
bility, as he was never at home alone to his recollection. He always
went to church in the morning and evening; and the maid servant
always went in the evening. And as to the ale, he often took a glass
of ale with the old Mr. Cook, but certainly •not three tumblers r^ggg
before church. He does not remember ever having gone in ^
there before church ; but he cannot say that he never went there and
during his visit took three glasses of ale, but certainly not before
church. I wish I could disabuse your mind respecting that young
man. We have always seen and believed so differently of him. And
I think, that, if he had been guilty of indiscretion, he would not deny
it to me when I spoke quietly to him. Nothing can convince me of
his insobriety. He has always been such a very different character.
I wish, dear Mr. Adams, that you would speak of him to the three
nice women (sisters) who live just beyond the blacksmith's. He
lodged there all the time he was with us, if he were of such a depraved
and unsteady character. I wish I could see you again before you

(a) It if right to add that the diipate between Fowler and the plaintiff resalted in an award
being made In fkvonr of the latter. '*

399 WHITELEY r. ADAMS. M. T. 1863.

leave town. I beg you will excuse my troubling you; and, with kind
regard, believe me " Yours very truly,

" Susan Hurry."

The defendant in reply addressed to Mrs. Hurry the letter com-
plained of in the second action ; and, upon the plaintiflTs afterwards
calling on Mrs. Hurry to ascertain the result of her communication,
she, like Mr. Cleaver, thought fit to hand the defendant's letter to
him.

At the trial it was conceded that the letters were libellous; but it
was submitted, that, in the absence of malice, they were privileged
communications.

Evidence having been given on the part of the defendant in sup-
port of his pleas of justification, the learned judge left it to the jury
to say, — first, whether the charges contained in the letters were sub-
stantially true, — secondly, whether the defendant was actuated by
feelings of malice towards the plaintiff) or whether the letters were
written by him in the bonfi fide belief that the matters therein con-
tained were true.

*4001 *The jury answered the first question in the negative, and
^ to the second that thpre was no malice : and they returned a
verdict for 405. on each libel.(a)

Coleridge, Q. C, on a former day in this term, pursuant to leave
reserved to him at the trial, obtained a rule nisi to enter a verdict for
the defendant, on the ground that the letters were under the circum-
stances privileged, or for a new trial on the ground that the verdict
was against evidence. As to the first letter, he submitted that the
defendant had a right to state his reasons for declining to act as arbi-
trator, as invited ; and, as to the second, he contended that it was
clearly privileged as an answer to a letter written with the sanction
of the plaintiff' himself.

Montagu Chambers, Q. C, and Joyce, showed cause. — Prima facie,
the moment a man writes and publishes that which is disparaging of
another, he is guilty of a libel : and, if the publication is to be ex-
cused on the ground that it is privileged by the occasion, the onus
lies on the defendant to show that it falls within the rule as to privi-
leged communications. Further, it is submitted, that, as matter of
law, the imputation must not go beyond the occasion, or be unneces-
sary or irrelevant. It is the duty of the judge to look at all the cir-
cumstances connected with the writing of the libel or the uttering of
the slander, and himself to decide whether it is a case of privileged
communication, or whether it is not such a wrongful act as to make
it actionable at law. It may also be that the writing is within the
*40n ^"^® ^^ ^* privileged •communications, and yet the privilege
■' may be rebutted by proof or by inference of malice. What-
ever doubt might arise as to the first libel here, there could be none
as to the second, as to which the question of malice or no malice
could not arise. In Bromage v. Prosser, 4 B. & C. 247, 254 (E. C. L.
E. vol. 10), 6 D. & E. 296, Bayley, J., lays down very plainly the
principles which are to guide the judge in such a case. "If," says

(a) The Terdiotwasthatofamijority of the jury, taken by oonsent A doubt was aftenrards
inggested as to whether the parties could be bonnd by it. Bat the coart lotimated a strong
opinion that they were.

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 401

that learned judge, " in an ordinary case of slander (not a case of pri-
vileged communication), want of a malice is a question of fact for the
consideration of a jury, the direction (a) was right; but, if in such a
case the law implies such malice as is necessary to maintain the ac-
tion, it is the duty of the judge to withdraw the question of malice
from the consideration of the jury: and it appears to us that the
direction in this case was wrong. That malice, in some sense, is the
gist of the action, and that therefore the manner and occasion of
speaking the words is admissible in evidence to show they were not
spoken with malice, is said to have been agreed (either by all the
judges, or at least by the four who thought the truth might be given
in evidence on the general issue) in Smith v. Richardson, Willes 20 ;
and it is laid down 1 Com. Dig. Action upon the Case for Defamation
(6. 5), that the declaration must show a malicious intent in the defend-
ant : and there are some other very useful elementary books in which
it is said that malice is the gist of the action ; but in what sense the
word malice or malicious intent are here to be understood, whether in
i)it popular sense or in the sense the law puts upon those expressions,
none of these authorities state. Malice in common acceptation means
ill-will against a person ; but in its legal sense it means a wrongful
act, done intentionally, without •just cause or excuse. If I [■♦^qo
give a perfect stranger a blow likely to produce death, I do it ^
of malice, because I do it intentionally, and without just cause or excuse.
If I maim cattle, without knowing whose they are, if I poison a fishery,
without knowing the owner, I do it of malice^ because it is a wrongful
act, and done intentionally. If I am arraigned of felony, and wil-
fully stand mute, I am said to do it of malice, because it is intentional,
and without just cause or excuse. And if I traduce a man, whether
I know him or not, and whether I intend to do him an injury or not,
I apprehend the law considers it as done of malice, because it is
wrongful and intentional. It equally works an injury whether I
meant to produce an injury or not; and, if I had no legal excuse for
the slander, why is he not to have a remedy against me for the injury
it produces ?" A man has no right to say of another or to publish
anything which is prim^ facie defamatory, that does not fairly arise
out of the occasion. In such a case it plainly is the duty of the judge
to hold that it is out of the privilege. In Tuson v, Evans, 12 Ad. &
E. 733 (E. C. L. R. vol. 40), 4 P. & D. 396,— which has erroneously
been supposed to have been broken in upon by subsequent cases, —
the defendant claimed rent of the plaintiff; the plaintiff's agent (with
whom the plaintiff had authorized the defeodant to correspond on the
subject, refusing himself to communicate with the defendant immedi-
ately), told the defendant that the plaintiff denied his liability : the de-
fendant thereupon wrote to the agent, alleging facts in support of his
claim, and adding, — " This attempt to. defraud me of the produce of the
land is as mean as it is dishonest :" it was held that the publication in
these terms was not privileged, and thatthe judge was justified in direct-
ing the jury that it was a libel. " Some remark," said Lord Denman,
"from the *defendant on the refusal to pay the rent was perfectly r^AAQ
justifiable, because his entire silence might have been construed ^
into an acquiescence in that refusal, and so might have prejudiced hia

(a) That, if the words were not spoken malioioasly, the defendant was not answerable.

403 WHITELEY v, ADAMS. M. T. 1863.

case upon any future claim ; and the defendant would, therefore, have
been privileged in denying the truth of the plaintiff's statement.
But, upon consideration, we are of opinion that the learned judge
was quite right in ooaaidering the language actually used as not
justified by the occasion. Any one, in the transaction of business
with another, has a right to use language bonS fide, which is relevant
to that business, and which a due regard to his own interest makes
necessary, even if it should directly, or by its consequences, be injuri-
ous or painful to another: and this is the principle on which privi-
leged communication rests. But defamatory comments on the motives
or conduct of the party with whom he is dealing do not fall within
that rule. It was enough for the defendant's interest in the present
case to deny the truth of the plaintiflTs assertion : to characterize that
assertion as an attempt to defraud, and as mean and dishonest, was
wholly unnecessary." Who can say that it was necessary for the
defendant here, in declining to act as arbitrator, to launch out into
such statements as are contained in these letters ? He clearly had no
right to indulge in imputations not fairly arising out of the occasion.
Cooke V. Wildes, 5 Ellis & B. 328, will probably be relied on for th^
defendant : but there the court, it is submitted, went far beyond the
necessity of the case. But, in delivering the judgment, Lord Canip-
bell says : " We fully adhere to the doctrine laid aown in Somerville
V. Hawkins, 10 C. B. 588 (E. 0. L. R. vol. 70), and Taylor v. Hawkins,
16 Q. B. 308 (E. C. L. R. vol. 71), that it is matter of law for the
judge to determine whether the occasion of writing or speaking
criminatory language, which would otherwise be actionable, repels
*4041 *^^® inference of malice, constituting what is called Skprivikged
J communication: and, if at the close of the plaintiflF's case there
is no intrinsic or extrinsic evidence of malice, that it is the doty of
the judge to direct a nonsuit or a verdict for the defendant, without
leaving the question of malice to the jury, as a different course would
be contrary to principle, and would deprive the honest transactions
of business and of social intercourse of the protection which they
ought to enjoy." In Brown v. Croome, 2 Stark. N. P. C. 297 (E. C.
L. R. vol. 8), it was held that an advertisement in a public paper
strongly reflecting upon the character of an individual who had been
declared bankrupt, was libellous, although published with the
avowed intention of convening a meeting of the creditors for the pur-
pose of consulting upon the measures proper to be adopted for their
own security, if the legal object might have been attained by means
less injurious. " The question," said Lord Ellenborough, " is. whether
the defendant was justified in publishing this advertisement to the
world, when all the communication which was necessary might have
been made in a manner less injurious." A similar opinion is
expressed by Alderson, B., in Woodward v. Lander, 6 C. & P. 548
(E. C. L. R. vol. 25). Warren v. Warren, 1 C. M. & R. 250, is to
. the same eflfect. The plaintiff and defendant were jointly interested
in property in Scotland, of which C. was manager : the defend-
ant wrote to C. a letter principally about the property and the con-
duct of the plaintiff with reference thereto, but containing a charge
against the plaintiff with reference to his conduct to his mother and
aunt : and it was held, that, though the part of the letter about the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 404

defendanVs conduct as to the property might be confidential and
priyileged, such privilege could not extend to the part of the let-
ter about the plaintiff's conduct to his mother and aunt. "The
•manager," said Parke, B., "could have nothing to do with p^nx
that." Neither could Mr. Cleaver or Mrs. Hurrj have any- *■
thing to do vrith the plaintiff's conduct in his dealings with Mr.
Fowler. In Godson v. Home, 1 Brod. & B. 7 (E. 0. L. R. vol. 5),
Richardson, J., says: ''If a man, giving advice, calls another a thief,
surely it is not necessary to leave it to the jury whether such lan-
guage is a confidential communication." Wenman v. Ash, 18 C. B.
836 (E. C. L. R. vol. 76), is a very important case. The defendant,
who had lodged in the house of the plaintiff, conceiving that he had
whilst there lost certain documents, and imagining that the plaintiff
had abstracted them from a box in which he had kept them, wrote a
letter to the plaintiff's wife, stating his loss, and his suspicions, in
language seriously reflecting upon the character of the plaintiff^ and
intimating, that, unless the plaintiff should think proper to return
them, he would expose him : and it was held that the occasion did
not justify the writing of the letter, so as to make it a privileged
communication, and that the plaintiff was entitled to recover, although
the jury negatived malice. Maule, J., there says : " Whether the
droumstances under which a communication is made constitute it a
priyileged communication or not, is a question which the court has
assumed the jurisdiction of deciding: but it is more a question of
&ot in each particular case than a question of law. The circumstance
of the jury naving negatived malice here, does not make the commu-
nication privileged. But we have to c($nsider whether the fact of the
defendant's having lodged in the plaintiff's house, and possibly lost
something while there, gave him a privilege to address such a com-
munication as that complained of to the pkintiff's wife. I think it
did not No reasonable person could think the course the defendant
took was one which he was justified in taking to enforce his own
interest." In *Toogood v. Spyring, 1 0. M. & R. 181, 4 r,^g
Tyrwh. 582, Parke, B., lays down the law in a manner which *-
has never been questioned. " In general," he says, *' an action lies
for the malicious publication of statements which are false in fact and
injurious to the character of another ^within the well-known limits
as to verbal slander) ; and the law considers such publication as mali-
cious, unless it is fairly made by a person in the discharge of some
public or private duty, whether legal or moral, or in the conduct of
uis own affairs in matters where his interest is concerned. In such
cases, the occasion prevents the interference of malice which the law
draws from unauthorized communications, and affords a qualified
defence, depending upon the absence of actual malice. If fairly war-
ranted by any reasonable occasion or exigency, and honestly made,
SQch communications are protected, for the common convenience and
welfare of society ; and the law has not restricted the right to make
them within any narrow limits." In Coxhead v. Richards, 2 G. B.
569, 60S (E. 0. L. R. vol. 52), Cresswell, J., sa^s: *' Every unautho-
rized publication of defamatory matter is, in pomt of law, to be con-
sidered as malicious. The law, however, on a principle of policy and
convenience, authorizes many communications, although they affect

406 WHITELEY v. ADAMS. M. T. 1863.

the characters of individuals ; and I take it to be a question of law
whether the communication is authorized or not." Again, at p. 606,
he says: " Where a party asks advice or information upon a subject
on which he is interested, or where the relative position of two parties
is such that the one has a right to expect confidential information and
advice from the other, it may be a moral duty to answer such inqui-
ries and give such information and advice ; and the statements made
may be rendered lawful by the occasion, although defamatory of some
♦AO^l ^^^^^ person, as in Dunman v. Bigg, 1 Campb. *269, and Todd
*^' J V. Hawkins, 2 M. & Rob. 20, 8 C & P. 88. Two cases,-
Herver v. Dowson, Bull. N. P. 8, and Cleaver v. Sarraude, reported
in M'Dougall v. Claridge, 1 Campb. 268, — were quoted as authorities
for giving a more extended meaning to the term 'moral duty,' and
making it include all cases where one man had information wbicb, if
true, it would be important for another to know. But the notes of
those cases are very short: in the former, the precise circumstances
under which the statement was made (see King v. Watts, 8 C. & P.
614, that such a statement made without inquiry is not lawful), and,
in the latter, the position of the defendant with reference to the
Bishop of Durham, to whom it was made, are left unexplained. I
cannot, therefore, consider them as satisfactory authorities for the
position to establish which they were quoted : and, in the absence of
any clear and precise authority in favour of it, I cannot persuade
myself that it is correct, as, if established at all, it must be at the ex-
pense of another moral duty, viz., not to publish defamatory matter
unless you know it to be true." Gilpin v. Fowler, 9 Exch. 615, is
also very much in point. The plaintiflF was master of a national
school in the parish of C, of which the defendant was rector, and
also one of the managers of the school. The defendant requested the
plaintiff to teach a Sunday-school in connection with the national
school, which he declined on account of the increased labour, and he
was in consequence dismissed. The plaintiff being about to set up a
school on his own account in the same parish, the defendant wrote,
and distributed in G. and in the adjoining parish, a " {)astoral letter,"
in which he denounced the plaintiff's conduct as unchristian-like, and
warned his parishioners against affording any countenance to the
projected school, either by subscriptions or by sending their children
•4.081 ^ ^^' ^ j^^g® ^^ ^^® ^^^^ having *ruled that this letter was
-• a privileged communication, and that, there being no evidence
of express malice, the defendant was entitled to a verdict, — the Ex-
chequer Chamber, on a bill of exceptions to the above ruling, held
that the communication was not privileged, and that there was evi-
dence for the jury of express malice. The facts of the present case
are short and simple. Fowler had brought an action against White-
ley for board and lodging, and for the price of a horse. It was a
matter of controversy between them whether there was anything due
for board and lodging, and also whether the horse had been bought
by Whiteley or only taken upon trial Mr. Cleaver, who was ac-
quainted with Whiteley, and who entertained a high opinion of himi
was desirous of getting the dispute with Fowler settled by mutual
friends, and accordingly wrote to Mr. Adams asking him to consent
to become arbitrator jointly with him in the matter. Mr. Adams

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 408

declined. A second letter was then sent to bim, urging him in strong
terms to assent to Mr. Cleaver's proposal. In answer to this second
letter, the letter is written which forms the subject of the first count,
— a letter which upon the face of it is wholly unwarranted by the
occasion, and filled with vituperative and irrelevant attacks upon the
moral character of Mr. Whiteley, and which could have nothing what-
ever to do with the question of his being arbitrator or not. From
such a letter written on such an occasion the law necessarily infers
malice, — not a private and particular malice towards the individual,
but an unauthorized act injurious to him. The libel in the second
count clearly admits of no excuse: it was altogether volunteered: it
was not written upon an occasion which afforded the smallest justifi-
cation for it : Pattison v. Jones, 8 B. & C. 578 (E. C. L. E. vol. 15), 3
M. & E. 101.

Coleridge, Q. 0., and H. JameSf in support of the *rule. — The r^^Qg
letters in question were clearly privileged communications, '■
being made to persons who were substantially agents of the plaintiff
and put in motion by him, and made in the discharge of what the
defendant might fairly conceive to be a social and moral duty. In
the first letter, the defendant is stating his reasons for declining to
accept the office of arbitrator, the acceptance of which had been urged
upon him by all those considerations which were the most calculated
to infiuence the mind of a clergyman, and above all one of the pecu-
liar notions entertained by the defendant: and the second was in
answer to a letter addressea to the defendant by Mrs. Hurry with the
plaintiff's cognisance. The jury have found that both letters were
written bonfi fide, and that there was an entire absence of malice in fact.
In Harrison v. Bush, 5 Ellis & B. 344, 348 (E. C. L. E. vol. 85), Lord
Campbell, in delivering the judgment of the Co^ft of Queen's Bench,
says: "During the argument, a legal canon was propounded for our
guidance by the plaintiff's counsel; and this we are willing to adopt,
as we think that it is supported by the principles and authorities
upon which the doctrine or privileged communication rests. * A com-
munication made bonfi fide upon any subject-matter in which the
party communicating has an interest, or in reference to which he has
a duty, is privileged, if made to a person having a corresponding
interest or duly, although it contain criminatory matter, which, without
this privilege, would be slanderous and actionable.' " And, after advert-
ing to the particular facts of that case, he adds, — ^^ Duty, in the pro-
posed canon, cannot be confined to legal duties which may be
enforced by indictment, action, or mandamus, but must include moral
and social duties of imperfect obligation." It is impossible to define
what is a moral and social duty of imperfect obligation. It must
depend upon the circumstances •of each case. The best defi- r^^t a
nition to be found in the books is that given b^ Parke, B., in '•
Toogood V. Spyring. And the Preliminary Discourse in Starkie on
Slander, pp. 48, 84, contains some remarks which are well worthy of
consideration. The rule laid down at p. 320 of that learned Work
(2d edit.), is, that, "where a communication is made in confidence,
either by or to a person interested in the communication, supposing it
to be true, or by way of admonition or advice, it seems to be a
general rule that malice is essential to the maintenanoe of an action.**

410 WHITELEY k ADAMS. M. T. 1863.

In Peacock v. Sir George BeyDal, 2 Ikownl. & Q. 151, it is said that,
if the letter " had been directed to a fathec for reformation of any acta
made by his children, it should be no libe!, for it is but for reforma-
tion and not for defamation : for, if a letter contain scandalous matter,
and be directed to a third person, if it be reformatory, and for no
respect to himself [the writer], it shall not be intended to be a libel,
for with what mind it was made is to be respected ; as, iC a man write
to a father, and his letter contain scandalous matter concerning his
children, of which he gives notice to the father, and adviseth the
father to have better regard to his children, this is only reformatory,
without any respect of profit to him which wrote it." And this,
though a Star Chamber case, is adopted in Viner's Abridgment, LiM
(A), 2., and in Bacon's Abridgment, Libel (A). The cases of Coxhead
i;. Eichards, 2 C. B. 569 (E. C. L. R. vol. 52), and Blackham v, Pugh,
2 C. B. 611, show the extreme difficulty there is in determining the
line of demarcation in these matters. A case of this kind was tried
before Mr. Justice Hill a short time prior to his retirement. The
facts were these : — Two attorneys' clerks had been fellow pupils, and
on terms of great intimacy, leading rather looseish lives. One of them
suddenly became very religious ; and, seeing his former companion
ncAii-] *at a certain church with a young laay to whom he was pay-

J ing his addresses, he, after consulting with the clergyman of
his parish, wrote to the lady's parents, communicating to them all he
knew of his former friend's antecedents. An action having been
brought, the learned judge said, that, if the jury thouglit that the de-
fendant reasonably believed that it was his duty to make the communi-
cation, he should hold it to be privileged. The jury, however, found
for the plaintiff, with 1^. damages : and no attempt was made* to disturb
the verdict. In Gardner v. Slade, 18 Q. B. 796 (B. C. L. R. vol. 66),
Coleridge, J., says : ^f the circumstances are such that all that was
said and done was consistent with duty, the speaking of the words can
afford no evidence of malice." The rule as to bona fides is not that
the circumstances must be such as to show that it wets the defendant's
duty to make the communication : it is enough if he be in such a
position that he may reasonably believe that it was his duty, though
in this he may have been mistaken. Malice is not to be inferred from
the mere circumstance of the defendant having acted upon an incor-
rect view of his duty: Pater v. Baker, 3 C. B. 831 (E. C. L. R. vol.
54). In Somerville v. Hawkins, 10 C. B. 583 (E. C. L. R. vol. 70),
the plaintiff had been in the service of the defendant, and had been
dismissed on a charge of theft. He afterwards came to the defendant's
house, and had some conversation with the defendant's servants. The
defendant, addressing himself to two of them, said (speaking of the
plaintiff), — " I have dismissed that man for robbing me : do not speak
to him any more, in public or in private, or I shall think you as bad
as him." In an action for those words, Maule, J., in delivering the
considered judgment of the court, says: "We think that the case
falls within the class of privileged communications, which is not so
restricted as it was contended on behalf of the plaintiff.' It compre-
♦4121 ^®°^^ *®'^ cases of communications made bonfi fide, in perform-

J ance of a duty, or with a fair and reasonable purpose of pro-
tecting the interest of the party using the words. In this case, sop-

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 412

posing the defendant himself to believe the charge, — a supposition
always to be made when the question is whether a communication be
privileged or not, — it was the duty of the defendant, and also his
interest, to prevent his servants from associating with a person of
such a character as the words imputed to the plaintiff, as such associa-
tion might reasonably be apprehended to be likely to be followed by
injurious consequences both to the servants and to the defendant him-
self." [Keating, J. — When you introduce " honesty" as an element,
do you not at once make the question of privilege one for the jury ?
Btles, J. — The question is, what is the defendant's duty ;« not what
he thinks to be his duty.] The letters being primfi facie privileged
by the occasion, the plaintiff was bound to prove express malice in
order to take away the privilege : Child v. Affleck, 9 B. & C. 408 (E.
C. L. R. vol. 17), 4 M. & R. 888. The language of Lord Ellenborough
in Pitt V. Donovan, 1 M. & Selw. 639, is particularly applicable here.
That was an action for slander of title conveyed in a letter to a person
about to purchase the estate of the plaintiff, imputing insanity to one
Y., from whom the plaintiff purchased it, and that the title would
therefore be disputea, per quod the person refused to complete the
purchase. The defendant had married the sister of Y., who was heir-
at-law to her brother in the event of his dying without issue. In
leaving the case to the jury, Graham, B., said that ** the gist of the
action was malice, — not malice in the worst sense ; but it was enough
that the act done was wrongful, and done under circumstances that
marked an intention to do an injury; and that would depend, not on
the ^circumstance whether' he believed it to be true, but r^^i©
whether his belief was such as a man of sound mind, or a man of ^
sense and knowledge of business, would haveformed,^^ ** That," says Lord
Ellenborough, "is what he was not justified in saying; for, with refer-
ence to the competencey or incompetency of Y., certainly the question
in this cause does not depend on that ; for, if what the defendant has
written be most untrue, but nevertheless he believed it, if he was
acting under the most vicious of judgments, yet if he exercised that
judgment bon& fide, it will be a justification to him in this case.
Whether his belief be such as a man of sound sense and knowledge
of business would have formed, is not the question : the opinion
which a rational man would have formed on such a subject might be
that Mr. Y. was competent ; but the jury must arrive at their conclu-
sion in this case through the medium of malice or no malice in the
defendant. In that way it might have been left to them, not if you
think that no man of a rational understanding would come to such a
conclusion, but you will say whether this defendant, with such an
understanding as he possesses, did bonfi fide arrive at the conclusion
which he has stated, or whether he did not use it as a mere pretence,
colour, and cloak for his malice." As to the first letter, here, con-
sidering the circumstances under which he was pressed to take upon
himself the office of arbitrator in the disputes between Fowler and the
plaintiff, the defendant clearly had a social and moral duty, as well as
a sort of interest in explaining to Mr. Cleaver why he declined to
accept it The court will not very closely scrutinize the extent of
the interest or the nature of the duty. And, as to the second letter,
it can hardly be said that the defendant was a volunteer: it was

413 WHITELET v. ADAMS'. M. T. 1863.

written in answer to one received from Mrs. Hurry after she had had
•4.141 ^ conversation with the plaintiff on the subject, and may
J *almost be said to have been written on his invitation.
Erle, C. J. — I am of opinion that this rule should be made abso-
lute. The action is brought to recover damages for two separate
libels, the first count being on a letter addressed by the defendant to
a clergyman named Cleaver, the second on a letter addressed by the
defendant to a lady named Hurry. Each of these letters contains
matter which is clearly defamatory of the plaintiff, and forms the
foundation of an action unless the circumstances under which it was
written bring it within the protection afforded by the law to what are
called privileged communications. I take it to be clear that the
foundation of an action for defamation is malice. But defamation
pure and simple affords presumptive evidence of malice. That pre-
sumption may be rebutted by showing that the circumstances under
which the libel was written or the words uttered were such as to
render it justifiable. The rule has been laid down in the Court of
Exchequer, and again lately in the Court of Queen's Bench, that, if
the circumstances bring the judge to the opinion that the communica-
tion was made in the discharge of some social or moral duty, or on
the ground of an interest in the party making or receiving it, then, if
the words pass in the honest belief on the part of the person writing
or uttering them, he is bound to hold that the action fails. In the
present case the jury found that the letters were written by the de-
fendant bon& fide and in the honest belief that what he wrote was
true and that it was his duty to make the communications he did.
Do the circumstances show that the letters were written in the
discharge of some social or moral duty, or that the writer or the
person to whom they were addressed had an interest in making or

*415]

♦receiving the communications? Taking the two letters

separately, I feel bound to answer that question in the affirma-
tive. They were confidential, in the sense that they need not and
ought not to have passed beyond the persons to whom they were
respectively addressed. The plaintiff, it appears, had been held in
great estimation by the members of the congregation of St. Barnabas.
The Rev. Mr. Cleaver was one of the assistant-curates of that church:
and Mrs. Hurry and her two daughters were persons who took a deep
interest in the spiritual welfare of the congregation. In the spring of
1860, Mrs. Hurry and one of her daughters went to make a short stay
at Stockcross, of which parish the defendant was rector. The plain-
tiff visited them there, and became accjuainted with the defendant, who
introduced him to one of his parishioners, named Fowler ; and the
result of the acquaintance so commenced, was, that the plaintiff aQ^
certain members of his family made frequent visits to Fowler's house,
boarding and lodging with Fowler's family. Ultimately, however,
circumstances occurred to disturb the harmony between these parties,
and disputes arose as to Fowler's right to pecuniary compensation for
his hospitality, and also as to a transaction about an alleged sale of ft
horse, and other matters; and an fection was brought by Fowler
against the plaintiff. Mr. Cleaver being informed of what was going
on, and being desirous of putting an end to the litigation in a friendly
manner, wrote to the defendant, as Fowler's clergyman, to ask his aid

COMMON BENCH REPORTS. (16 J. SCOTT. N. S.) 415

in the matter, bj acting as arbitrator with himself. The defendant
answered this letter by declining the invitation, — telling Mr. Cleaver,
in snbstance, that, if he or any of the other clergymen of St. Barnabas
would go down to Stockcross, he would give them such information
as would satisfy them that he had good ^grounds for his refu- r«^i ^
sal. Then came the letter from Mr. Cleaver which provoked ^
the first alleged libel. Mr. Cleaver's second letter adjured the defend-
ant as a matter of christian duty to recall his decision. It was the
letter of one- clergyman of strong religious opinions writing to a
brother clergyman whose notions coincided with his own, exhorting
him as he valued his sacred calling to lend his aid in averting a pub-
lic scandal from a marked member of his congregation. In answer to
tbe appeal so made, the defendant in effect says, — I cannot consent to
do as you wish ; and I will tell you why I cannot : and he goes on to
give his reasons, in order to convince the person he was addressing
that it was not his duty to interfere as requested. It seems to me,
that, under all the circumstances, it was the social and moral duty of
the defendant as a clergyman towards Mr. Cleaver as another clergy-
man to give him true and correct information on the subject upon
which he was writing. I say emphatically that I- think he was dis-
charging a social and moral duty: and I also think it was his interest^
if he wished to stand well with those whose religious opinions coin-
cided with his own, to satisfy them that he was not shrinking from
the performance of his duty as a clergyman, in declining to act the
part of a peacemaker.

Then, as to the letter which constituted the alleged libel in the
second count, the difficulty of the defendant seems to me to be infi-
nitely greater than with regard to the first letter. It did not appear
that there had been any request to Mrs. Hurry to interfere in the
matter. The plaintiff probably knew that Mrs. Hurry had written to
the defendant, for he went, it seems, to her house to receive his
answer. But the defendant himself was the party who initiated the
movement of that lady. He called upon her and made certain
*statement8 to her respecting the plaintiff. It may be said that rm^yj
this was done in the fair exercise of an interest, in this sense, —
Mr. Cleaver had deluded him into the belief that he might write to
him in confidence; and when he received his letter he handed it to
the plaintiff. Smarting under this dishonourable treatment, the de-
fendant calls on Mrs.-Hurry (who had been the means of introducing
the plaintiff into his parish), and tells her that an action has been
brought against him, and talks very freely to her of the circum-
stances which had led to it. She endeavoured to persuade him that
the opinion he had formed of the plaintiff was an erroneous one, and
told him she would see thai gentleman and commnnicate to hinoi the
result of the interview. Mrs. Hurry afterwards did see the plaintiff
and wrote to the defendant in a very kindly spirity telling him that
the plaintiff denied all tbe charges that had been made against him,
and expTessing a hope that all would be amicably and satisfaetorily
urmw&A^ In what position would the defendant have placed hii*-
lelf if be had left that letter unanswered 7 He assavea Mrs. Hitrry
tkal tlie inpatsticFna are well-founded : and he addsr^^ If he** (nieaiih
mg^ Ibe ptaintiff) " gtate» on oatk \a the whdeM^box what he hm

C. B. K. 8.| VOL. XV.— 17

417 WHITELEY v. ADAMS. M. T. 1863.

gtated to yon, especially as to the charge of assault, he will be most
certainly prosecuted for perjury; for, there is not a shadow of doubt
but that the complaint of the servant girl is correct." If that was
what the defendant really believed to be true, I think Mrs. Hurry's
letter, which showed she entertained a high opinion of the moral and
religious character and conduct of the plaintiff, written under the cir-
cumstances under which it was written, fully warranted it. I think
the defendant was only discharging a social and moral duty in writing
to the lady, '* Madam, your confidence is misplaced." I also think,
•4181 ^^® plaintiff's first action being *then pending, that the de-
■l fendant had a direct interest not to allow Mrs. Hurry's letter to
pass as if he acquiesced in the opinion therein expressed. Not only,
therefore, was the defendant in my judgment discharging a social and
moral duty, but he was also acting with a just view to his own interest
in writing that letter. Judges who have had from time to time to
deal with questions as to whether the occasion justified the speaking
or the writing of defamatory matter, have all felt great difficulty in
defining what kind of social or moral duty or what amount of interest
will afford a justification : but all are clear that it is a question for the
^judge to decide; and I am clear that the letters in question, seeing
ithe circumstances under which they were written, do not show what
4n law amounts to malice. I fully concur in the doctrine referred to
tin Starkie on Slander, that it is important to get at the true character
'of persons you are obliged to be in communication with and to treat
with confidence. The law as to privileged communications waa for-
tnerly much more restricted than it is at the present day. The case
of Peacock v. Sir George Reynal, 2 Brownl. k G. 151, is an early and
a very strong example. The rule has since become gradually more
•extended, upon the principle that it is to the general interest of society
that correct information should be obtained as to the character of per-
<fions in whom others have an interest. If every word which is uttered
to the discredit of another is to be made the ground of an action,
cautious persons will take care that all their words are words of praise
only, and will cease to obey the dictates of truth. The privilege of
criticizing and discussing the words and acts of public men has in
'modern times been very widely extended ; and so also has the rule as
'to giving information concerning private individuals, when given
*41Q1 ^0°^ ^^®; ^^^ ^o & P^^soQ having *an interest in making the
' J inquiry, and, in my judgment, with very- good reason.
WiLLiAKS, J. — I am of the same opinion. After the finding of the
jury that the defendant acted bonfi fide, this argument must proceed
'Upon the assumption that the defendant believed that the imputations
he was making were well founded. That being so, he finds Mr.
•iyleaver and Mrs. Hurry to be under what he had a right to suppose
A delusion with regard to the plaintiff, and that they erroneously
4>elieved him to be a good and pious man. For the reasons given by
my Lord, I think that Mr. Cleaver and Mrs. Hurry stood in such a
relation to the defendant that it was his moral and social duty, to un*
deceive them as to the true character of a person whom they set soch
a mistaken value UDon. I do not mean to say that it would be tbe
duty of the defenaant to proclaim the plaintiff's delinquencies in
pablio: but I think he was justified in making them known to per-

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 419

8ona wbom it was bis duty to undeceive. Applying the rule adopted
m Harrison v. Busb, 5 Ellis & B. 844 (E. G. L. B. vol. 85), I am
clearly of opinion that the occasions privileged these communications^
and prevented them from being actionable.

Btles, J. — I am of the same opinion. I conceive the rule upon
this subject to be clear ever since the case of Toogood v, Spyring.
The law considers the publication of defamatory matter to be malicious,
"unless it is fairly made by a person in the discharge of some public
or private duty, whether legal or moral, or in the conduct of his own
affairs in matters where his interest is concerned.'* The more that
case is examined, the more carefully and accurately the rule will be
found to be expressed. Its application to particular cases has always
been attended with the greatest difficulty : *the combinations r*4oo
of circumstances are so infinitely various. As to the first por- ^
tion of the first letter of the defendant in this case, I tnink it was
excusable on the ground that it was written by him " in the conduct
of his own affairs in a matter where his interest was concerned." He
was asked to consent to be arbitrator in a dispute between the plain-
tiff and one of his own parishioners to whom he himself had intro-
duced the plaintiff. He declined the office. He was pressed by his
brother clergyman in terms which left him no alternative but to give
his reasons for persisting in his refusal. His interest was concerned.
He had a right to give his reasons. He certainly goes on to say, —
"Inasmuch as he (the plaintiff) said a great deal to my parish-
ioners about his intimacy with the clergv of St. Barnabas, I think it
my duty to unmask him t6 you; and I should be very thankful to be
enabled to tell some of my neighbours that his position at St. Barna-
bas is not quite what he led them to suppose it to be, and especially
that bis official connection with the English Church Union had ceased."
He however says he thinks it his duty to make this eommunicution :
and the jury have found that he did bonfi fide think so. The letter,
it must be remembered, was written by one clergyman to another,
both zealous and conscientious men, — the one urging the other by his
duty as a christian minister to aid in the removal of a great scandal
from the congregation of which the plaintiff was a member ; and the
other replying in terms which showed that he evidently thought it
his duty to make the communication he did. It seems to me that
both parts of that letter were privileged. As to the second letter, I
am disposed to think it was privileged on the ground of interest. At
the time it was written an action had been brought against Mr.
Adams, — a groundless action, as he conceived, — for having written
the first *letter. He knew that Mrs. Hurry was in communi- [•♦421
cation with the plaintiff, and had reason to believe that the ^
letter would be shown to him ; and there is good ground for saying
that it was sent in order that it might reach the hands of the plain-
tie I therefore think, though with some doubt, that the aacond letter
was privileged on the second ground put by Parke, B., in Toogood
V. Spyring.

KsATiNO, J. — ^I am of the same opinion. There is no difference
as to the rule of what constitutes a privileged oommunication. It is
clearly and accurately laid down in Toogood v. Spyring, 1 C. M. & B.
181, 4 Tyrwh. 582, and also in Harrison v. Basb| 6 llliB k B. 841

421 WHITELEY v. ADAMS. M. T. 1863.

(Ei 0. li. E. vol. 86). The only difliculty is as to its applicatioa to
Uke facts and circumstances of this case. That is a difficulty which
must often arise from the infinitely various combinations of circum>
stances. After the very full judgments given by the other members
of the cour^ I only think it necessary to say that I concur.

Bale absolute. (a)

(a) Sm the next eue.

*4a2] •FEYBR v. KINNEBSLEY.(a) Nov. U.

On the reeommendfttion of one E. (who was superintendent of the Horticnlturftl Society's gar-
dens, and in the habit of rsoommeoding gardeners to its members), E. hired F. in that eaptcitj.
B«iBg disiatisfled wUh him after some montbt, he gara hln notiee to leave his service, ud
Galled upon E. to recommend him, another gardener in his plaet. Shortly afterwards K. wrsts
to E. a letter, complaining of F.'s conduct; in which letter, amongst other thingf> hesaid^-
"On Satarday I had another scene with F. in my garden. He was extremely violenti cams
towards me several times with an open elasp-lcnife in his hand, and eyes starting from tfa«
SMkets with rage, a perfeot raring madman. I was, fortunately, accompanied by my opper
aerrant. He accased me of having opened a letter of has, Ae. I think it right that yon shoeld
be informed of F.'s violent conduct, aa you might unwittingly reoommiead him, without beiii|
aware of his temper and faults." In consequence of this letter, E. refused to employ F. in Ui«
•oetety's gardens, as he before had done, and bnt for the letter would have done again :—

Hald, that, afiuming that the relation between K. and B. was such as to warrant a com-
munication on thesubjeot of F/s conduct, the above letter wa« excluded fsem the priTilega,by
reason of excess.

This was an action for a libel. Plea, the general issue.

The cause was tried before Keating, J., at the sittings in West-
minster after last Trinity Term. The facts which appeared in evi-
dence were as follows : — The plaintiff had been employed as a gar-
dener under Mr. Eyles, the superintendent of the Royal Horticultural
Gardens, of which society the defendant was a member. The defend-
ant having applied to Mr. Eyles to recommend him a gardener, that
gentleman, who was in the habit of recommending gardeners to mem-
bers, though it was no part of his duty as superintendent to do so^
sent the plaintiff to him, and the defendant engaged him in January,
1862. In January, 1863, being dissatisfied with the plaintiff's con-
duct, the defendant gave him notice to quit his service on the 30tb
of April following, and applied to Mr. Eyles to recommend him
another in hi» place, and had some conversation with him on the
snbjeet, in the course of which he told him the grounds of his dis-
flBttsSactioik ; and he on the 20th of April wrote and sent the follow-
ing letter (which was the libel complained of) to Mr. Eyles:—

" Binfteld Manor, Berks. 20th April, 18(B.
♦4231 '* ^**^ Sir,— Oil Saturday I had another scene with ♦Fryer
^ in my garden. He was extremely violent, came towards me
mw&vX times witb an open clasp-knife in his hand, and eyes starting
fit» the iock^ with rage, a perfect raving madman. 1 was, forta-
nately, accompanied by my upper servant. He accused me of having
opened a leMer of hM^ and said be bad written to the General Post
Ufflee about it, asd would take proceedings, aa it was an indicubk
oOsMflt. I h«fi|^foiiied itt aigr p^bag, cdnee ntj i»}tice to him ta

(a) Sm (&• pnoedisf oam.

COMMON BENCH REPORTS. (15 J. SCOTT. N. 8.) 423

•
leave, a letter and a daily newspaper. The letter was delivered to
him unopened ; and certainly qo letter for him was ever opened hy
me. I went today to inquire at the Bracknell post-office if he had
made any complaint there about me, but found that no complaint had
been made there. Mr. Bartlett told me that some time ago Fryer
obtained a post-office order for some one in London, and, not having
given the correct name and address, the money was not paid, and he
came to the post-office and abused Mr. Bartlett in very rude language.
I think it right that you should be informed of Fryer's violent con-
duct, as you might unwittingly recommend him, without b^ing aware
of his temper and faults. I have engaged the gardener of whom I
spoke to you. He has been here, and likes the place.

*' I am, dear Sir, yours truly,
" Edward Kinnerslby."

On the 22d of April, Mr. Eyles wrote in answer, as follows : —

'Dear Sir, — I am surprised and very much annoyed to hear that
Fryer has behaved so shamefully to you. I had intended to have him
taken on here again on leaving you ; but I cannot think of doing so
after such behaviour. I certainly shall have nothing more to do with
him ; and I am only extremely sorry that I 'should have been r^AOA.
the means of his coming to you : but I evidently did not know ^
his temper and disposition. "J. Eyles."

The plaintiff having, after he left the defendant's service, applied
to Mr. Eyles to give him employment in the society's gardens, that
gentleman declined to do so, and read to him the defendant's letter;
whereupon this action was brought.

The declaration consisted of two counts for libel each setting out a
different part of the letter, but not accurately (Mr. Eyles having
refused to furnish him with a copy), and a count for verbal slander,
which last was abandoned at the trial.

Mr. Eyles, who was called as a witness on behalf of the plaintiff,
staled that he would but for the defendant's letter have given the
plaintiff employment. He also stated, that it was no part of his duty
as superintendent to recommend gardeners to members of the society,
but that he frequently did so, and that he always when he had an
opportunity inquired how they were getting on. It did not, however,
appear that the defendant's letter was written in answer to any such
inquiry.

On the' part of the defendant it was submitted that there was a
variance between the letter and the libels as alleged in the declaration,
and further that the letter fell within the class of privileged commu-
nications.

The learned judge declined to nonsuit the plaintiff, but reserved
leave to the defendant to move to enter a verdict or a nonsuit, — the
court to be at liberty to amend if they should be of opinion that the
judge ought to have amended: ana he left it to the jury to say
whether the letter was bona fide written or whether the defendant was
actuated by malicious motives towards the plaintiff, and also to assess
the damages.

•The jury negatived malice, and assessed the damages at r*^25
lOZ. A verdict having been entered for the plaintiff accord- *•
ingly,

425 FRYER v. KINNERSLET. M. T. 1863.

Shee, Serjt., on a former day in this term, pursuant to the leave
reserved to him, obtained a rule nisi to enter a verdict for the defend-
ant, or a nonsuit, on the ground of variance, and that the letter was
a privileged communication.

Dighy Seymour, .Q. C, and Laxion, on a subsequent day» showed
cause. — It was clearly competent to the judge to amend the declara-
tion : Saunders v. Bate, 1 Hurlst. &; N. 402 : and it is hardl y possible
to conceive a fitter case for the exercise of his discretion. [Erle,
C. J. — Address your argument to the question of privilege.] The
only circumstance which can at all be relied on as a justification for
the publication of this libel, is, that the plaintiff had originally been
recommended to the defendant by Eyles. That, however, did not
give Eyles such interest in the matter as to warrant the defendant in
volunteering statements calculated unduly to prejudice the plaintiff in
his estimation and to prevent him from again taking him into his
employ ; nor did it impose upon the defendant any social or moral
duty which could in any way justify his officiousness. The letter
was evidently written in a moment of irritation and excitement. It
was wholly uncalled for by any relation in which the writer stood to
the person to whom it was addressed. In Rogers v. Clifton, 3 Bos. &
P. 587, it was held, that, although a master be not in general bound to
prove the truth of a character given by him to a person applying /nr the
character of his servant, yet, if he officiously state any trivial misconduct
•4261 ^^ *^® servant to a former master, in order to prevent him *gi ving
^ a second character, and then himself, upon application for a
character, give the servant the character of "a bad-tempered, lazy, in-
competent fellow," the truth of which he is unable to prove, the jury may
from these circumstances infer malice on the part of the master, in an
action against him by the servant. In Pattison v. Jones, 8 B. &; C. 578
(E. C. L. B. vol. 15), 8 M. &; B. 101, it was held that such a coinmani-
cation, to be privileged, must be made bonfi fide in the belief by the
party that he is acting in the discharge of a duty which he owes to
the party to whom it is made. And that is adopted by Tindal, C. J^
in Coxhead v. Bichards. 2 C. B. 597 (E. C. L. B. vol. 52). In Brooks
V, Blanshard, 1 G. &; M. 779^ A. was engaged to superintend the
works of a rdilway company, and subsequently, at a general meeting
of the proprietors, the. engagement was not continued, but a former
inspector was reinstated. A vacancy subsequently occurred in the
situation of engineer to the commissioners for the improvement of
the river Wear, and A. became a candidate. B. wrote to C. introdu-
cing D. as a candidate, and, C. having written to B. informing him
that another person had succeeded in obtaining the appointment, B.
wrote an answer to C. reflecting on the conduct of A. whilst in the
situation of engineer to the railway company. There was a subse-
quent election, at which A. was unsuccessful, in consequence of this
letter having been shown. It appeared that B. and C. were both
shareholders in the railway company, and that B. managed C/s affairs
in the railway. B. had not been applied to for his opinion, and the
letter containing the libel was written after the termination of one
election, and before the other was in contemplation. In an action by
A. against B. for the libel, it was held that the letter was not a privij
leged communication. Again, in Martin v. Strong, 5 Ad. & E. 535

COMMON BENCH EEPORTS. (15 J. SCOTT. N. 8. 42»

1 — ^ • "•

(E. C. L. B. vol. 31), it was held that words spoken by a subscriber
to ♦a charity, in answer to inquiries by another subscriber r^tAof
respecting the conduct of a medical man in his attendance '-
upon the objects of the charity, are not, merely on account of those
circumstances, a privileged communication. This clearly is not a
privileged communication within the rule laid down in Toogood v.
Spvring, 1 C. M. & R. 181, 4 Tyrwh. 582, and Harrison v. Bush, 5
Ellis k B. 344 (E. C. L. R. vol. 85).

Shee, Serjt., and Kingdon, in support of the rule. — It is submitted
that the letter in question was a privileged communication within the
rule laid down in Toogood v, Spyring and Harrison v. Bush. That
role caunot be better stated than in the language of Parke, B., in the
former of those two cases. "In general," says that learned judge,
"an action lies for the malicious publication of statements which are
false in fact, and injurious to the character of another (within the
well-known limits as to verbal slander); and the law considers such
publication as malicious, unless it is fairly made by a person in the
discharge of some public or private duty, whether legal or moral, or
in the conduct of his own affairs, in matters where his interest is con*
earned. In such cases, the occasion prevents the inference of malice
which the law draws from unauthorized communications, and affords
a qualified defence depending upon the absence of actual malice. If
fairly warranted by any reasonable occasion or exigency, and honestly
made, such communications are protected, for the common conveni-
ence and welfare of society : and the law has not restricted the right
to make them within any narrow limits. Among the many casJa
which have been reported on this subject, one precisely in point has
not, I believe, occurred: but one of the most ordinary and common
instances in which the principle has been applied m practice, is,
*that of a former master giving tlie character of a discharged r*408
servant; and I am not aware that it was ever deemed essential *-
to the protection of such a communication, that it should be made to
some person interested in the inquiry, alone, and not in the presence
of a third person. If made with honesty of purpose to a parly who has
any interest in the inquiry (and that has been very liberally construed,
—see Child v. Affleck, 4 M. 4; R. 838, 9 B. 4; C. 403 (E. C. L. R. vol.
17) ), the simple fact that there has been some casual by-stander cannot
alter the nature of the transaction. The business of life could not be
well carried on if such restraints were imposed upon this and similar
communications." That is in substance adopted by Lord Campbell,
in giving judgment in Harrison v. Bush, 5 Ellis k B. 344, 348 (E. C.
L. R. vol. 85), and it has never been questioned. Can it be said that
the defendant had not an interest here, or that Mr. Eyles, through
whose recommendation the plaintiff had entered the defendant's ser-
vice, had not likewise an interest in knowing what had been the con-
duct of the man he had so recommended ? It has been suggested that
this communication was officious and voluntary. But, though the
judges of this court were divided in opinion in the case of Coxhead
v. Richards, 2 C. B. 569 (E. C. L. R. vol. 52), they at all events did
not differ in this, that the circumstance of the communication being
Yolantary did not prevent it from being protected.(a) The real ques-

(a) See Bennett v. Deacon, 2 C. B. 628 (E. C. L. R. toI. 62).

428 FRYER v. KINNERSLEY. M. T. 1863.

tion is wliether the communication was made in the discbarge of some
public or private duty, social or moral, or in a matter in which the
party making it has an interest. Here, the jury found that the com-
munication was honestly and bona fide made. The defendant had
applied to Eyies to recommend him a gardener; and Eyles (who was
in the constant habit of doing so to members of the society of which
♦4.991 ^® ^*® *^^® superintendent) had recommended the plaintiff: it
-' was clearly, therefore, the defendant's duty to inform Eyles of
his servant's misconduct, and Eyles had clearly an interest in knowing
the sort of person he had recommended. [Byles, J. — Without any
inquiry on Eyles's part?] Yes. [Erlb, C. J.— If this letter had
been addressed to Mr. Eyles in answer to an inquiry from him, that
might have afforded a justification. But this was the act of a mere
volunteer. I must confess I entertain very grave doubts. Williams,
J. — In Harrison v. Bush, Lord Campbell says, — " ' Duty/ in the pro-
posed canon, cannot be confined to legal duties, which may be enforced
by indictment, action, or mandamus, but must include moral and social
duties of imperfect obligation." The question is whether this was
done in the performance of a social duty.] The beginning of the
letter shows that there had been previous communications between
the defendant and Eyles upon the subject in hand. [Byles, J. — The
letter charges the plaintiff with something like an indictable oftence.]
There was no intention to accuse the plaintiff of a deliberate design
to use the knife. It is not as if the letter had been addressed to a
perfect stranger. It is not unworthy of remark that it would have
been Eyles's duty to make inquiry of the defendant before he recom-
mended the plaintiff to any other gentleman. Coltman, J., in Cox-
head V. Richards, says,— 2 C. B. 601 (E. C. L. R. vol. 52),— '* Even
though the statement be not on advice asked, but is made voluntarily,
that circumstance was said in Pattison v. Jones, 8 B. & C. 578 (E. C.
L. R. vol.45), 8 M. & R. 101, not necessarily to prevent the statement
from being considered as privileged." [Keating, J. — Bayley, J., in
Pattison v. Jones, says, — *' I do not mean to say, that, in order to
make libellous matter written by a master privileged, it is essential
*4^01 ^^^^ ^^^ party who makes the communication should be *put
-' into action in consequence of a third party's putting questions
to him. I am of gninion he may (when he thinks that another is
about to take into his service one who he knows ought not to be
taken) set himself in motion, and do some act to induce that other to
seek information from and put c[uestions to him." That comes very
near to the present case.] Wright v. Woodgate, 2 0. M. & B. 573,
Tyrwh. k Q. 12, is also a very strong case. The defendant was a
solicitor employed in an equity suit on behalf of the plaintiff, a minor.
The plaintiff was desirous of changing his solicitor, and informed the
defendant of it. The defendant thereupon wrote a letter to the plain-
tiff's next friend (who was liable for the costs of the suit), dissuading
him from giving any directions in the matter, and alleging, among
other observations on the plaintiff's conduct, that a civil engineer, to
whom the plaintiff had been apprenticed, had made him a present of
his indentures, because he was worse than useless in the o{&oe: and it
was held that this was a privileged communication.
Erlb, C. J. — Upon the question whether or not this was a privi-

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 430

leged coiDmnnication, there is some little difference of opinion, and
therefore we will take tirae to consider. We think, however, that the
amendment should be made, the defendant being at liberty to plead to
the amended declaration, — the costs of the day and of the amendment
to be costs in the cause for the defendant.

Shee^ Serjt., intimated that the defendant had no desire to go down
again : if the court should be against him upon the question as to the
letter being a privileged communication. Cur, adv. vuU.

*Erlb, C. J., now said : This was a rule to set aside the ver- r^Aoi
diet for the plaintiff, and to enter a verdict for the defendant '-
or a nonsuit, in an action for a libel, on the ground that the defama-
tory letter complained of was a privileged communication. What-
ever might have been our opinion as to the privilege on the ground
that Mr. Eyles, the person to whom it was addressed, had recom-
mended the plaintiff to the defendant, and was in the habit of finding
gardeners for masters and masters for gardeners, if the letter had been
strictly confined to a simple statement of the plaintiff's conduct as a
servant, we think the defendant cannot on this occasion take any
advantage from that, because Ihe letter in our judgment goes far
beyond the occasion. The calling the plaintiff "a raving madman,"
and some other expressions, are so much in excess of the occasion as
to prevent our holding the letter to fall within the rule as to privi-
leged communications. Without, therefore, further expressing any
opinion, we think the rule must be discharged. The verdict for the
plaintift' will consequently stand. Rule discharged.(a)

(a) This And the preceding case form a striking example of the extreme diffionUy there is in
the appliealioD of the rule laid dowD hy Parlce, B., in Toogood v. Spyring, 1 C. M. A R. IBl,
4 Tyrwh. 582, and adopted and perhaps a little extended by Lord Campbell in Harrison v. Bush*
» BUis A B. B^ (B. C. li. B. vol. 85).

♦BLACKMAN and Another v. BAINTON. New. 18. [*482

Twentj-fiTe witnesses and a horse on one side against tea witnesses on the other, — Held not
raeh a preponderance of " inoonvenienoe" as to induce the court to bring back the Tenue from
the place where the cause of action (if any) arose.

This was action to recover damages for an alleged breach of a war-
ranty of a horse.

The venue being laid in Middlesex, the defendant obtained an order
of Willes, J., to change it to York, upon an affidavit which stated
that the cause of action, if any, arose in the county of York, and not
in the county of Middlesex or elsewhere out of the countv of York ;
that it would be necessary and expedient for the defendant to sub-
poena no less than ten witnesses to support and establish his defence
to the action, all of whom were material and necessary witnesses, and
all resided at or near Beverley, in the county of York ; that he had
no witnesses residing out of the said county of York ; and that the
expense of trying the action in Middlesex would, the deponent
believed, greatly exceed the expense of trying it in the county where
the cause of action arose and the witnesses resided.

Brandt now moved to rescind the above order, upon an affidavit of
one of the plaintiffs which stated that the action was brought to r^

432 BLACKMAN r. BAINTOJT. M. T. 1863.

cover the purchase-money paid by the plaintiffs to the defendant for «
brown mare warranted (verbally a^id in writing) sound, free from
vice, and quiet ; that she was the most vicious and unquiet brute the
deponent (who was a dealer) had ever possessed ; that several grooms
who had in vain attempted to ride her, as well as the deponent's three
brothers and himself, were material witnesses to prove the plaintiffs'
case, as well as several veterinary surgeons, amongst others, one of
the professors at the Royal Veterinary College, to the number in all
^ .00-1 of *twenty-five, all resided in Middlesex ; and that the depo-
J nent estimated the extra expense of trying the cause in York-
shire would be at least 100/., besides the expense and risk of taking
the mare down to York.

Erle, C. J. — The cause of action having arisen in Yorkshire, and
the inconvenience being about equal, the common-law right turns the
scale.(a)

The rest of the court concurring. Rule refused.

(o) It hM generallj been understood to be the plain tiffs eommon-law right, in a transitory
action, to lay the venne where he pleases, and that the onus of showing a preponderance of
<MnconTenienoe" la/ on the defendant. Bee Archbold's Praotice, 11th ediL (Prentice), 1339^
1342.

SEVAN V. WHITMORE. Nov. 16.

An official assignee of a district oonrt of bankruptcy having given his assent to the bringing
of an action in his name jointly with that of the trade-assignee for the recovery of part of ihm
bankrupt's estate, and the action proving unsuccessful, the trade-assignee paid the eosta :~-
Held, that he was entitled to sue the official assignee for contribution.

The court or a judge has a discretion to dispense with bail on appeal, as well as with bail la
error.

An official assignee of a district court of bankruptcy having been sued by the trade-assigsM
for contribution to the costs of an unsuccessful action to which the former was an assenting
party, and judgment having gone against him,— Held, that it was a fit case for dispensing witk
bail on appeal.

This was an action brought by the plaintiff, who was the trade-
assignee under a fiat against one Foster, a merchant at Birmingham,
to recover from the defendant the sura of 127i., being a moiety of
the costs incurred and paid by the plaintiff in an action brought by
both as assignees against one Dowling, under the following circuoi-
stances : —

In January, 1856, the bankrupt had given Dowling a bill of sale of
certain property. He afterwards attempted a compromise with his
♦4341 ^^^^^^^''^ under the *arrangement clauses of the Bankrupt
^ Act: but. failing in this, he was made bankrupt, and tho
defendant, Whitmore, was appointed ofRcial assignee under the fiat,
and the plaintiff, Bevan, who was the principal creditor of the bank-
rupt, trade-assignee. Dowling having possessed himself of the pro-
perty conveyed tohira by the bill of sale, the trade-assignee demanded
their restoration on the ground that the conveyance was a fraudulent
preference and an act of bankruptcy. Dowling declining to comply
with this demand, the trade-assignee took the opinion of counsel; aad,
being advised that there was good ground of action against Dowling,
he wrote to the official assignee requesting his concurrence in bringing

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 434

the action. Having obtained the concurrence of the official assignee,
and having on the 29th of June, 1857, obtained an order from the
commissioner for that purpose, the trade-assignee on the 4th of July
brought an action of trover against Dowling. Mr. Crosbie acted as
the attorney for the plaintiflTs in that action, — Reece, the solicitor to
the fiat, being Bowling's attorney, and having as such prepared the
bill of sale for him. The declaration was delivered on the 4th of
October, 1857, but the cause was not brought to trial until June,
1860, when it resulted in a verdict for the defendant. Whitmore was
never in any way consulted during the progress of the proceedings.
In the meantime, a case of Monk v. Sharp, 2 Hurlst. & N. 540, had
been decided in the Court of Exchequer, which clearly showed that
there was no foundation whatever for the action, (a)

♦The claim in this action, which was tried before Erie, rtAOK
C. J., at the sittings in London after last Trinity Term, was •-
for a moiety of the costs which Bevan had paid to Bowling's attorney,
and ali^o a moiety of the costs paid to the attorney who conducted the
proceedings, Crosbie, and which last-mentioned costs were paid by
Bevan after an action had been commenced against Whitmore and
himdielf for them.

On the part of the defendant, it was submitted, that, whatever
might have been his liability to Dowling for his costs, the mere cir-
cumstance of his permitting his name to be joined as a plaintiff in the
action, for conformity, he having no personal interest in the matter,
did not render him liable to Bevan ; and, further, that, assuming that
he could be liable, there was such culpable negligence on the part of
Crosbie in proceeding in the action after the decision of Monk v.
•Sharp, as to disentitle Crosbie to recover his costs, or Bevan r^^og
to recover contribution. '■

His Lordship directed a verdict to be entered for the plaintiff for
the sum claimed, reserving leave to the defendant to enter a verdict
for him or to reduce the damages, if the court should be of opinion
that the plaintiff was entitled to recover nothing, or only a proportion
of the costs paid to Dowling.

JIawkina, Q. C, on a former day in this Term, moved accordingly. —
No doubt, as between Dowling and Whitmore, the goods of the latter
voald have been liable to an execution for Dowling's costs. But
Bevan cannot sue for contribution. Whitmore was only joined for

(a) On the 2Ath of Jane, the plaiotiffii, who were traders, petitioned the Coart of Banlirnptey
for protection ander the 211th section of the Bankrupt Law Consolidation Act, 1849 (12 A 13
Viet. e. 106). They filed an account of debts, and made a proposal according to s. 214. At an
aiyoumed meeting on the 6th of August, the plaintiffs did not attend, and neither the proposal
Bor any modification of it was acoepted, whereupon the meeting was adjourned to the publio
courts and the plaintiffs were adjudged bankrupts uQder s. 223. The adjudication was not
founded on the petition of a creditor, nor was the plaintiffs' petition dismissed. On the said
26th of June, the defendant was indebted to the plaintiffs. On the 6th of July, the plaintiffs
assigned this debt to Messrs. D., and ga^a notice thereof to the defendant. Messrs. D. had at
the time of the assignment of the debt to them notice of the petition for arrangement It waa
held, — first, that the filing the petition for arrangement was not an act of bankruptcy, that
petition never having been actually dismissed, and no petition for an adjudication of bank-
nptey having been filed within two months, in pursuance of s. 76,~secondly, that, whore a
trader it a4jiidicated bankrupt under the 223d section without the filing of a petition by a cre-
ditor, the IkanlLTuptcy has no relation back to any act done by the bankrupt prior to the adjadi-
oation, — thirdly, that, for the reasons above mentioned, the plaintiilii were eniiiled to reooTer
the debt is qaestion as trustees for Messrs. D., sotwithstanding the bankruptcy.

486 SEVAN v. WHITMORB. M. T. 1863.

conformity: and he mi^ht have refused to permit his. name to be ased
until a proper indemnity against costs was given to him. He is a
mere ofScer of the court, having no personal interest in the result :
whereas, Sevan, being a large creditor, had a direct interest. There
is no case in which the point, though one of great importance, has
been decided. [Stles, J. — It is somewhat like the case of two trus-
tees, and one having a beneficial interest and getting the other to joia
in an action for his benefit.] The nearest case to the present is
Turner v. Davies, 2 Bsp. N. P. C. 478, where Lord Kenyon says : " I
have no doubt, that, where two parties become joint sureties for a
third person, if one is called upon and forced to pay the whole of the
money, he has a right to call on his co-surety for contribution : but,
where one has been induced so to become surety at the instance of
the other, though he thereby renders himself liable to the person to
whom the security is given, there is no pretence for saying that he
shall be liable to be cauled upon by the person at whose request he
entered into the security." [Williams, J. — The action ^here was
♦4^71 ^^^°^®^ Viipon an *equity, which would not exist if the one
^ surety became so at the instance of the other.] Then, there
was manifest negligence, as well on the part of Sevan, as on that of
the attorney employed by him, in recklessly proceeding in the action
against Dowling after a solemn decision of the Court of Exchequer
which conclusively showed that there could be no hope of success.
[Byles, J. — If your first point fails, this one resolves itself into an
objection of negligence on the part of the attorney employed by bothS\
It is submitted that Sevan, himself an attorney, was equally guilty
of negligence, and may be said to have deluded Whitmore into con-
senting to a proceeding which he was bound to know must end in
defeat.

Erle, C. J. — Take a rule on the first point, — that the facts did not
establish any liability in the defendant.

Quain showed cause. — At the time when these transactions took
place, all assets of the bankrupt were received by the official assignee,
and he alone had any control over the finances of the estate : and the
evidence at the trial showed that there were funds which might have
been retained to satisfy this liability. The official assignee had at
least an equal interest with the trade*assignee in getting in the assets,
being at that time paid bv fees according to the scale provided by the
Orders in Bankruptcy or 1852, s. 130 : and there can be no reason
why the two should not be jointly liable for the costs of an unsuccess-
ful action brought by them jointly. It was Whitmore*s duty to allow-
bis name to be used in an action brought under the order of the com-
missioner: and there is no pretence for his asking an indemnity.
♦4881 Lush, Q. C, and Hamkins, Q. C, in support of the *rule. — This
^ case, it is submitted, does not fall within the ordinary rule as
to oontributories. An action of this sort only lies where formerly a
court of equity would have compelled payment. It is not a mere
action of contract : see the judgment of Eyre, C. B., in Deering v. The
Earl of Winchelsea, 2 Bos. & P. 270, cited in Cowell v. Edwards, 2
Bos. & P. 268, and that of Lord Bedesdale, in Stirling i;. Forrester, 8
Bligh 676, 690, 696. [Williams, J.— It is altogether new to me to
hear that those observations are applicable to any other than the oaso

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 438

of co-sureties. The principle is thus stated by Lord Eldon in Cray-
thorne v. Swinburae, 14 Ves. 160, 164 : ** It has been long settled,
that, if there are co-sureties by the same instrument, and the principal
calls upon either of them to pay the principal debt, or any part of it,
the surety has a right in this court, either upon a principle of equity,
or upon contract, to call upon his co-surety for contribution ; and 1
think that right is properly enough stated as depending rather upon
a principle of equity than upon contract, — unless in this sense, tbat,
the principle of equity being in its operation established, a contract
may be interred upon [from] the implied knowledge of that principle
by all persons ; and it must be upon such a ground of implied assump-
sit, that, in modern times, courts of law have assumed a jurisdiction
upon this subject; a jurisdiction convenient enough in a case simple
and uncomplicated, but attended with great difficulty where the
sureties are numerous ; especially since it has been held that separate
actions may be brought against the different sureties for their respect-
ive quotas and proportions. It is easy to foresee the multiplicity of
suits to which that leads. But, whether this depends upon a principle
of equity, or is founded in contract, it is clear a person may by con-
tract take himself out of the reach of the principle or *the im- p^og
plied contract. In the case of Deering v. The Earl of Win- •-
chelsea, which, I recollect, was argued with great perseverance,
persons not united in the same instrument were made to contribute ;
and it was decided that there is no distinction whether they are
bound in the same obligation or by several instruments. That case
also established, that, though one person becomes a surety without the
knowledge of another surety, that circumstance introauces no dis-
tinction. If the relation of surety for the debtor is formed, and the
fact is not that the party becomes surety for both the principal debtor
and another surety, not for the principal alone, it is decided, that,
whether they are bound by several instruments or not, whether the
fact is or is not known, whether the number is more or less, the
principle of equity operates in both cases, upon the maxim that
equality is equity : the creditor who can call upon all, shall not be at
liberty to fix one with payment of the whole debt ; and, upon the
principle requiring him to do justice, if he will not, the court will do
it for him.'^ The plaintiff here, as a large creditor of the bankrupt,
had a strong interest in attempting to get back the goods from the
hands of Dowling. The defendant, as official assignee, had no interest
but to do his duty as a public officer. The trade-assignee could not
get in the assets without the aid of the official assignee : the latter was
clearly entitled to be indemnified for the use of his name : Ex parte
Turquand, In re Dickenson, 8 Mont. D. k De Qex 475. [Ejcatino,
J. — Would the official assignee haye been entitled to an indemnity
where he had a large sum of money in his hands at the time ? Byles,
J. — And where be assented to the actfon being brought ? Ebls, C.
J. — And where the action was brought with the leave of the commis-
noner?! The assets in hand were not api)licable to ^these rmAAf)
coats ; there was not enough to satisfy th« claim of the solicitor '-
to the estate, The assent to the action being brought was a mere
dlcial act in execution of the ^fendant's public ddty : and the order
of the eoannttttxoner would make it compulsory on the official assignee

440 BEVAN v. WHITMORB. M. T. 1863.

to allow the action to be brought in his name. By so consenting, he
could not lose any equitable right he had. If Whitmore had had
execution levied on his goods for the whole cost due to Dowling, he
clearly would have had a remedy in equity against the trade-assignee.
It does not follow that contribution lies in the circumstances which
have happened, because the trade and the official assignees are both
parties on the record. Turner v, Davies has never been dissented
from. [Williams, J. — Assuming it to be good law, all that Turner
v. Davies establishes, is, that, if the plaintiff had induced the defend-
ant to become surety with him for a third person, he could not sue
him for contribution. How does that apply here?] The official
assignee, having no personal interest in the result of the action, con-
sented to become a nominal party at the request of the plaintiff
[Byles, J. — Both have an interest in the result.] The official assignee
did not retain the attorney : for, the bare act of concurring iu an
action being brought does not amount to a retainer. [Byles, J. —
Sevan's letter names the attorney, and Whitmore does not dissent.]
He does not appear to have been consulted, or ever to have interfered
in the matter.

Erle, C. J. — We are all agreed upon the question of law, viz. that
an action will lie for contribution where there is a joint liability, and
one has paid the whole amount. The only doubt we have entertained,
is, the duty of a jury being cast upon the court, what is the fair infer-
♦4411 ®°^® ^ ^^ drawn from the facts. If the fair *result of the facts
-' be that the parties mutually agreed to sue, and the action
failed, and one paid the whole costs, he would be entitled to call upon
the other for a moiety. The best conclusion I am able to come to
upon the facts, is, that Bevan and Whitmore concurred in bringing the
action. If the action had been successful, Dowling would have paid
the costs. They did not contemplate the possibility of failure. They,
however, did fail. The event was unforeseen. It is clear that no one
contemplated that Bevan alone should be liable. Upon the general
principle, I think he is entitled to call upon his co-plaintiff for con-
tribution.

Williams, J. — I am of the same opinion. Our decision appears
to me to turn upon a question of fact. If the transaction is to be
taken to be, that Whitmore authorized Bevan to employ Crosbie to
bring the action in their names, and consented that the action shoald
be brought as their joint action, he is clearly liable to pay half the
costs, and also half the satisfaction due for the judgment, as between
himself and his co-plaintiff: and it can make no difference, that, when
he allowed his name to be used, he had no apprehension of having to
pay costs. If, on the other hand, the real truth is that the action was
commenced and set on foot by Bevan, he knowing that it coald net
be brought without the assent of the official assignee, and he induced
the latter to allow his name to be used for form's sake only, for his
own purposes, then it is pretty clear that he could have no action for
contribution either in respect of the costs of the action or the judgment.
Dealing with the facts as a jury, I can come to no other conclusion
than that the defendant is liable.

•4421 Btlbs, J. — I agree with my Lord and my Brother •Wil
•^ liama that the fair result of the facts is, that the parties were

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 442

joint plaintiffs in the actjon against Dowling, and that they failed. I
apprehend the rule of law to be clear, that, under such circumstanceSi
he who pays the whole is entitled to sue for contribution: and that
rule extends to all cases where one of two joint-debtors or joint-con-
tractors pays the whole debt : Sadler v. Nixon (or Hickson), 5 B. &
Ad. 936 (E. C. L. E. vol. 27), 2 N. & M. 258; Prior v, Hembrow, 8
M. & W. 873. The only difficulty here is, to determine whether the
plaintiff and defendant were joint-debtors, equally liable for these
costs. It is said that they are not, because they have not an equal
interest, — the one being entitled as a creditor to a dividend out of the
assets, and the other only to his percentage. As between themselves,
however, and Dowling, they were jointly and equally liable. It is
clear that they were jointly liable to Dowling ; and Whitmore being
an assenting party to the bringing of the action, and the employment
of Crosbie as the attorney, it is equally clear that they are jointly
liable as between themselves. I therefore think the verdict for the
plaintiff was right.

Keating, J. — I am of the same opinion. The only just conclusiou
from the facts is this, that Whitmore authorized the bringing of the
action against Dowling so as to become jointly liable with Bevan, not
only for the costs due to Dowling, but also for the costs of their own
attorney ; and Bevan having paid the whole, he clearly was entitled
to call upon Whitmore to contribute his share.

____^_^ Eule discharged.

The defendant having appealed against the above decision, Willes,
J., on the 23d of November, made an *order " that bail on the r^AAo
appeal herein shall be dispensed with." The order was made I-
upon an affidavit of the defendant himself, to the following effect: —

*' 1. I am one of the official assignees of the court of bankruptcv for
the Birmingham district, at Birmingham, and have been such for
twenty years and upwards last past. As such official assignee, I have
given a bond to government, with sureties to the amount of 60002.|
for the due fulfilment of my duties:

" 2. I reside at, &;c., and am possessed of household furniture and
effects which I estimate to be or the value of 800/. I am also pos-
sessed of office furniture of considerable value: and, as such official
assignee aforesaid, I am entitled to receive an annual salary of 10007,
free o( office expenses :

** 3. This action is brought by the plaintiff, the trade-assignee of the
estate of William Foster, a bankrupt, against me as official assi^ee
of such estate; and, on the trial of the action, the learned judge inti-
mated that the question in dispute would turn on a mere point of
law, and he directed a verdict for the plaintiff, with liberty for me to
move to enter the verdict for the defenaanty or a nonsuit :

'* 4. My appeal to the court of error against the decision of this
court is bonfi fide, and not with the intention of delaying the plain-
tiff in any way whatever. I am strongly advised by my counsel, and
verily believe, that I have cause to be aggrieved by the decision of
this court; and that, as there is no decid^case analogous or bearing
on the point in dispute in this action, it is important for the interests
of myself and the other official assignees that this cause should be

443 BEVAN 9, WHITMORB. M. T. 1863.

solemnly argued and reheard before a court .of error, in order to ob-
tain a decision upon the point of law reserved by the Lord Chief
Justice on the trial :
♦4441 "6. I have resided in Birmingham and the *neighbourbood

-' ever since my appointment to the office of official assignee at
Birmingham as aforesaid ; and my friends and acquaintances consist
in a great measure of persons holding offices in the court of bank-
ruptcy there, and solicitors practising before the court, and others
with whom I come into communication in my official capacity, and I
could not consistently, seeing the position I hold in Birmingham, ask
any one to become bail for me to prosecute the proceedings in error :
^' 6. For the reasons aforesaid, I say that it is not essential for the
interests of the plaintiff that security should be required from me to
prosecute the proceedings in error in this action, and for the further-
ance of justice the security of bail so to prosecute should not be
insisted on."

Quain (Nov. 25th) moved for a rule to show cause why the order
of Willes, J., should not be rescinded. — The learned judge, it is sub-
mitted, had no power to make this order: and the case is not a fit one
for its exercise if the power exists. The 38th section of the Common
Law Procedure Act, 1854 (17 & 18 Vict. c. 125), enacts that " notice
of appeal shall be a stay of execution, prpvided bail to pay the sum
recovered and costs, or to pay costs where the appellant was plaintiff
below, be given, in like manner and to the same amount as bail in error
within eight days after the decision complained of, or before execu-
tion delivered to the sheriflf." Bail in error is regulated by the 151st
section of the Common Law Procedure Act, 1852 (15 & 16 Vict. c.
76), which enacts, that, "upon any judgment hereafter to be given in
any of the superior courts of common law in any action, execution
shall not be stayed or delayed by proceedings in error, or supersedeas
*445"l ^^®^®"P^°* without the special order of the court *or a judge, unless

^ the person in whose name such proceedings in error be brought,
with two, or by leave of the court or a judge, more than two, sufficient
sureties, such as the court (wherein such judgment is or shall be
given) or a judge shall allow of, shall, within four clear days after
lodging the memorandum alleging error, or after the signing of the'
judgment, whichever shall last happen, or before execution executed,
be bound unto the party for whom any such judgment is or shall be
given, by recognisance to be acknowledged in the same court, indouble
the sum adjudged to be recovered by the said judgment (except in case
of a penalty, and, in case of a penalty, in double the sum really due, and
double the costs), to prosecute the proceedings in error with effect, and
also to satisfy and pay (if the said judgment be affirmed, or the proceed-
ings tn error bo discontinued by the plaintiff therein), all and singular
the sum or sums of money and costs adjudged or to be adjudged upon,
the former judgment, and bH costs and damages to be also awarded for
the delaying of execution, and shall give notice thereof to th« defendant
in error, or his attornev*'^ Tbe words " in like mann^* and ta the
same amonnt^'^ it is submitfted, refer to the nifmber of suretitea and
tbe sam, and not to the- whole of the olAuse rehrtiog to bail in error
id' aa to incorporale ihm disereliott fo dispenM with il [BtlbS, J.-^
Accoiidihig to» yo«r coft8lnictf<M», the oovcrt may dbpense witk bail

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 445

wbere tbe matter is on the record, bat not where it only comes before
the court of error on appeal] That, no doubt, is so. Assuming that
the power to dispense with bail exists, what is there in this case to
call for its exercise? The only grounds upon which it is asked, are,
that the defendant is a public officer, and as such has given bond for
his good behaviour, and that he has a salary of 10002. per annum.
Is an oflScer ♦of the court of bankruptcy to have a privilege r^AAa
which no other officer of any other court has ? In the case of '■
Cox v. The Corporation of London, the Court of Excheauer expressly
refused to dispense with bail in error, though informed that tne cor-
poration had never been called upon to put in bail in error. [Erle,
C. J. — We do not usually interfere with the exercise of a judge^s dis-
cretion.] This is more than an exercise of discretion,

A rule nisi having been granted,

Oaies, who appeared to show cause, was stopped by the court.

Quain was heard in support of his rule.

Eblb, C. J. — I think this rule should be discharged. No reason
can he suggested for a distinction in this respect between bail in error
and bail on appeal. If Mr. Quain's argument were to prevail, it
plainly would be in consequence of a mere act ^f improvidence or
omission on the part of the legislature. I think there is no foundation
for the argument. And, if I, am to enter into the Question of discre-
tion, I cannot say that it has not been well exercised. Here is a pub-
lic officer, discharging a public duty, fairly trying an important ques-
tion affecting his office. If bail could in any case be dispensed with,
I should have thought it well might be in such a case.

The rest of the court concurring, Bule discharged.(a)

(a) The ooato of th« rul« wen direotdd to abide tbe OTont of (he appeaL

*COPLEY V. HEMINGWAY. Nov. 8. [*447

Article 7 of the Direetiona to the Taxing Hasten, of Hilary Term, 1853, appliei to the oostf
of a de/mdant who obtain! a Terdlet in a cause tried before the Secondary, where the snm
•adoned on tba writ does not exoeed SOf.

This was an action to recover damages for undue delay in the
unloading from a vessel belonging to the plaintiff a cargo of stone
ooDsigned to one Henry Booth, a stone-merchant having a wharf on
the river Thames above London Bridge. There was no charter-party,
nor any bill of lading of the cargo : and the plaintiff sued the defend-
ant as the shipper of the cargo, on an implied contract to receive the
cargo within a reasonable time after the arrival of the vessel in the
port of London. The declaration contained a special count in which
the plaintiff claimed as damages the expenses he had incurred in:
keeping the crew, &c., and also a count for demurrage. The plaintiff^s
claim was for ten days' detention, at 2h per day. A summons to
show cause why the cause should not be tried before the sberifib of
London, taken out by the plaintiff, was opposed b^ the defendant, on
the groand that the plaintiff's claim in the action involved a questioo
of great importance to persons engaged in the Yorkshire stone trade,
and InYolved the proof of the custom as to the unloading of veasela

C. B. H. 8., VOL. XV. — 18

447 COPLEY ». HEMINGWAY. M. T. 1863.

in that trade arriving in the port of London and discharging their
cargoes at stone-wharves above bridge. The order was however made,
and the cause was tried before the Secondary of London on the 2d of
September last, when a verdict was found for the defendant.

On taxation of the defendant's costs, the defendant claimed to have
them allowed upon the higher scale. No certificate affecting the costs
was granted or applied for at the trial. The Master taxed the costs
upon the lower scale, pursuant to the *' Directions" of Hilary Term,
1868.
•44fil *Prentice moved for a rule calling upon the plaintiff to show

J cause why the Master should not be at liberty to review his
taxation. He submitted, that, notwithstanding the general heading
5f the schedule annexed thereto, the 7th article of the "Directions
V) the Taxing Masters," of Hilary Term, 1853, was confined to the
plaintiff ^8 costs. The words are, — "In all actions on contract, other
than cases wherein by reason of the nature of the action no writ of
trial can by law be issued, where the sum recovered, or paid into
court and accepted by the plaintiff in satisfaction of his demand, or
agreed to be paid on the settlement of the action, shall not exceed 20^
(without costs), the plaintiff^a costs as against the defendant shall be
taxed according to the lower scale of allowances in the schedule of
•costs hereunto annexed." These directions, he submitted, did not
apply to actions for unliquidated damages, like the present. [Bylbs,
J. — The defendant appeared before the Secondary, and the cause was
;tried.] The order having been made in the vacation, the defendant
tad no opportunity to come to the court to set it aside. [Btles, J.
— It never could have been intended that, if the plaintiff succeeded,
•he should receive costs on the lower scale, and pay on the higher
•scale if he failed.] Mason v. Tucker, 4 Hurlst. k N. 536, was re-
ferred to.

Erlb, C. J. — I think there ought to be no rule in this case. The
defendant's costs were properly taxed on the lower scale. The sum '
dlaimed by the writ was 20t only. Article 7 of the directions referred
to in terms restricts the plaintiff to costs upon the lower scale where
the sum recovered, or paid into court and accepted by the plaintiff in
satisfaction of his demand, or agreed to be paid on the settlement of
<4491 ^^^ action, shall not exceed 201. Taking that in connection

J with *the schedule, which provides for general allowances for
both plaintiffs and defendants, I think it was obviously the intention
of those who framed these directions, that, where the sum in dispute
>nd endorsed on the writ does not exceed 20Z., the defendant's costs,
. if he succeeds, shall also be taxed according to the lower scale. It is
«aid that the case was not one which could properly be tried before
the inferior judge. But my Brother Keating made an order that the
cause should be tried before the Secondary. It was so tried. The
defendant appeared, and obtained a verdict : and he afterwards went
before the Master to tax his costs. It is too late for him now to object
that the cause was not triable before the Secondary.

Williams, J. — I am entirely of the same opinion. We must
assume that the cause was properly tried. The only question is,
whether the costs were properly taxed upon the lower scale. I ani

COMMON BENCH REPORTS. (15 i. SCOTT. N. S.) 44»

dearly of opinion that the Directions applj to the defendant's costs
as well as to the plaintifif 's.

Btlbs, J. — I am of the same opinion. The heading of the schedule
shows that both plaintifiTs and aefendant's costs were contemplated.
Where it was intended otherwise in these Directions, it is so ez-
pressed.(a)

KsATiNO, J., concurred. Rule rcfusod.(6)

(a) Article 8 proTidei, that, « where, in like AeCioni, the ram eDdorted on the [writ of] rammont
ibftll be more than 20Z., bvt Ihe pUintilT faiU to reeorer more than that ram, and the judge doof
not certify u aforesaid^f the plaintilTi oofts against the defendant, whether between party and
party or ai between attorney and elienl, ehall be taxed ai upon a writ of trial before a judge
of a court of reeord where attorneys sre not allowed to act as adTooates, as hereinafter prorided
for; hi tkm de/eudamft eoait, if anjf, are to b4 taxed u]pon cAc higher eeaU t Provided, that, in
eases triable before the sheriff or judge of an inferior oourt» where the judge shall refttse to
Bake an order for such trie), the judge may, if he shall think flt, direct at the time of sueh
refasal on what seale the costs of eaeh party shall be Used ; and, in default of such direotio^
the costs of both parties shall be taxed on the higher seale."

{h) See Perry r. Bennett^ 14 C. B. N. S. 402 (B. C. L. &. toL 108).

t " That the cause was proper to be tried before him, and not before a sheriff or judge of
SB inferior eourf

THE LONDON AND SOUTH WESTEEN RAILWAY COM-
PANY V. ANN WEBB. Nov. 5, 25.

A railway company baring eonrtyed to A. a piece of land abutting on their riadnet, with a
eoTcnant not to build within six feet of the wall of the riaduoty — the court, in an action against
A.'s widow (who took by assignment) for building against the wall in breach of the oerenan^
in which action she had raffered judgment by default, refused to grant an injunction against
her commanding her toremore the building; it appearing that it had been erected by her under-
tenant, and consequently that she could not obey the writ, if granted.

The 79th section of the Common Law Procedure Act, 1854, enacts,
that, " in all cases of breach of contract or other injury, where the
partj injured is entitled to maintain and has brought an action, he
may, in like case and manner as hereinbefore provided (ss. 68-74)
with respect to mandamus, claim a writ of injunction against the
repetition or continuance of such breach of contract or other injury,
or the committal of any breach of contract or injury of a like kind,
arising out of the same contract, or relating to the same property or
right ; and he may also in the same action include a claim for damages
or other redress."

The Slst section enacts that " the proceedings in *such ac- r«^i
tion shall be the same, as nearly as may be, and subject to the ^
like control, as the proceedings in an action to obtain a mandamus
under the provisions hereinbefore contained ; and in such action judg-
ment may be given that the writ of injunction do or do not issue, as
justice may require ; and, in case of disobedience, such writ of injunc-
tion may be enforced by attachment by the court, or, when such
courts shall not be sitting, by a judge."

And the 82d section enacts that " it shall be lawful for the plaintiff
at any time after the commencement of the action, and whether before
or after judgment, to apply ex parte to the court or a judge for a writ
of injunction to restrain the defendant in such action from the repe*

4M L. k 8. W. RAILWAY CO. v. WEBB. M. T. 1863.

tition or continuance of the wrongful act or breach of contract com*

Slained of, or the committal of any breach of contract ot injury of a
[ke kind, arising out of the same contract, or relating to the same
property or right ; and such writ may be granted or denied by the
court or judge upon such terms as to the duration of the writ, keeping
an account, giving security, or otherwise, as to such court or judge
shall seem reasonable and just; and, in case of disobedience, such
writ may be enforced by attachment by the court, or, when such courts
shall not be sitting, by a judge: Provided always, that any order for
a writ of injunction made by a judge, or any writ issued by virtue
thereof, may be discharged or varied or set aside bv the court, on
application made thereto by any party dissatisfied with such order."
C. Wood moved, pursuant to the above provision^ for a writ of in-

Junction under the following circumstances: — By an indenture of the
2th of July, 1849, the London and South Western Bailway Company
♦4.591 g''^^^^ ^^^ conveyed to Thomas Webb in fee a piece *of

J ground on the north side of the Westminster Briage Road,
Lambetn, abutting on one side on the viaduct of their railway : and
Webb in and by the said indenture covenanted, amongst other things,
"for himself, his heirs, executors, administrators, and assigns, and so
as to bind not only himself and themselves, but all and every persons
and person who should from time to time thereafter be seised of or
entitled to the hereditaments and premises intended to be thereby
conveyed or otherwise assured," with the company, ** that the said
Thomas Webb, his heirs or assigns, or any person or persons who
might lawfully or equitably claim through or under him or them,
should not at any time thereafter erect any buildings of any kind any
part of which should be nearer than six feet to the face of the viaduct
of the London and South Western Bailway on anv part of the ground
intended to be thereby conveved which was shadea with black lines
on the plan in the margin of the indenture, without the consent in
writing of the company, under the hand of their secretary, first had
and obtained." And it was thereby declared that *^ it should be lav-
ful for the company, their successors and assigns, and their architects;
engineers, officers, servants, agents, workmen, and other persons who
might be employed by the said company, from time to time and at all
times thereafter to enter into and upon such part or parts of the land
and hereditaments intended to be thereby conveyed, as might be ne-
cessary or expedient, for the purposes of viewing and examining the
state of the piers of the arches and other works of or belonging to
the said railway, and for ascertaining whether the covenants in the
said indenture contained on the part of the said Thomas Webb, his
heirs and assigns, to be observed and performed, should be truly ob-
*4531 ^^^^^ ^°^ performed according to the true intent and meaning

^ ^thereof ;^ and also for the purpose of pointing, maintainingr
upholding, repairing, and rebuilding or otherwise reinstating the said
railway, or any part or parts thereof, or any of the piers or arohe*
belonging thereto, and for the purpose of erecting, placing, or setting
up any scaffolding or shoring^ and of carting, dniwing, or otherwise
GOtiYeying or depositing or placing any materials or other things ia
or nporr the ground and premises intended to be thereby conveyed or
otherwise assured, for the purpose of or relating to such pointing,

COMMON BENCH REPORTS. (16 J, SCOTT. N. 8.) 453

maintaining, upholding, repairing, or rebuilding, or otherwise rein-
stating, without any eviction, interruption, let, suit, or denial whatso-
ever of, from, or by the said Thomas Webb, his heirs or assigns, or
his or their tenants or occupiers, or any other person or persons whom-
soever who might lawfully or equitably claim through or under him or
them or any of them."

All the right and title of Thomas Webb in the premises subse-
quently came to the defendant as assignee ; and whilst she was assignee
one David Bliss who claimed under her built a shop on the piece of
land, part of which was nearer than six feet to the face of the viaduct
and on part of the ground intended by the above indenture to be
convened and which was shaded with black lines on the plan in the
margin of the indenture, without the consent of the company. The
company thereupon brought this action against the defendant for a
breach of the covenant above set out, claiming a writ of injunction
in the terms of the statute. The defendant suffered judgment by^
default.

The learned counsel stated, that, it being doubtful whether an in-
junction could be granted by this court against the tenant (Bliss), he
confined his application to the defendant herself. [Byles, J. — If we
granted what you ask, we should be enjoining the defendant to do
that which would amount to a trespass.] If she has *by her r^^AKA
own laches placed herself in that position, it is her own fault. ^
[Bylks, J. — ^The 82d section says that '*such writ may be granted or
denied by the court." We are not to grant it unless we think it a fit
case. The soil of the six- feet is not in the company.] No. It was
conveyed by them to the deceased husband of the defendant, with a
covenant not to build thereon. [Byles, J. — The proper course will
be to apply to the Court of Chancery, which might nave the tenant
before it and make such order as should appear to it upon the whole
to be just. This we have no jurisdiction to do. If we made the
order upon the defendant as prayed, we should be enjoining her to do
that which would make her a trespasser.] Is injustice to be done to
the plaintiffs, and ruinous delay and costs to be inflicted upon them,
because the defendant has not thought fit to secure herself againat a
breach of the covenant by her tenant ?

Ebls, C. J. — We cannot order a writ against the tenant. And I
do not feel disposed, in the exercise of my discretion, or justified in
commanding the defendant under the circumstances brought before
ns to do that which would amount to an act of trespass on her part.

The rest of the court concurring, Rule refused.

Wood renewed his application on a subsequent day, upon a further
affidavit of the resident engineer of the company, who stated, that, in
his opinion, it was absolutely necessary for the due and proper man-
agement and examination of the railway, and the due, proper, and
•safe working thereof, that the portion of land shaded with r»x55
black lines on the plan annexed to the before-mentioned con- ^
veyance (the six foot space) should be at all times kept clear from any
building or erection thereon, so as to enable the company by their agents
at any time to enter into aiid upon the land conveyed by th^ above-
mentioned indenture, for the purpose of viewing and examining the

455 L. & S. W. RAILWAY CO. v. WEBB. M. T. 1863.

state of the piers of the arches and other works of the company ad-
joining to and under the land so sold to the said Thomas Webb,
deceased, as referred to in the deed : that it was, in his opinion, neces-
sarv for the preservation of the said viaduct and the safety of the
traffic on the railway at once to enter into and upon the said land so
shaded black as aforesaid, for the purpose of pointing, maintaining,
upholding, repairing, and otherwise reinstating the said viaduct or
parts thereof adjoining thereto, and for the purpose of erecting, plac-
ing, or setting up scaffolding or shoring, and of carting, drawing, or
otherwise conveying and depositing or placing materials and i>ther
things thereon as might be found necessary for such purpose, which
it was not possible to do while the buildings complained of remained
on the said land : and that, so long as any building of any kind Was
permitted upon any part of the said piece of ground which should be
nearer than six feet to the face of the viaduct, no proper examination
or reparation could be had or done to the said viaduct adjoining to
and under the land so conveyed to the said Thomas Webb as aforesaid.
The learned c^)unsel submitted that the facts sworn to brought the
case expressly within the 82d section; that, in administering relief
under that section, the court would be guided by the principle on
which such relief is granted in equity, viz. that the recovery of dam-
*4.fiftl *^o®^ ^^ ^^^ would not give a perfect compensation : *see Wil-
*°^J kins V. Aikin, 17 Ves. 422 ; Wood v. Sutcliffe, 2 Sim. N. S.
163 ; Broadbent v. The Imperial Gas Company, 2 Jurist, N. S. 1132;
Hodgson r. Duce, 2 Jurist, N. S. 1014 : Earl Talbot v. Hope Scott,
27 Law J. Ch. 273 ; North v. The Great Northern Railway Company,
2 Giff. 64; and that no private arrangement which the defendant had
thought fit to enter into with her tenant ought to be permitted to in-
terfere with the plaintiffs' right. [Keating, J. — Why not assess your
damages, and take the defendant in execution 7] The damages would
be merely nominal. [Byles, J. — You might have a further action
for continuing damage.] A difficulty would arise as to costs. [Erle,
C. J.7— Go to the Court of Chancery, where all the parties may be
heard, and full justice done.] Why should the plaintiffs be driven
to the Court of Chancery at great delay and expense, when the statute
entitles them to the same relief in the action 7 What was this power
given to the courts of common law for 7 [Erlb, C. J. — Not to be
made an instrument of oppression, — not to compel a party to do that
which we see he cannot do.]
Per Curiam. Rule refu8ed.(a)

(a) See Ringland v. Lowndes, antd, p. 173, where the ooart exercised the jorudioUoii giTen
to them hy the mandamnf oUoMa of the Common Law Procedure Act, 1854.

*457] ♦MORRISON v. WOOKEY. Nov. 18.

It is not neceiiarj to h&Te a eopy of the Judge's notes at the time of monng for a new triU in
a ease tried, under a Judge's order, before a county court

Tfli^was an action which was tried, under a judge's order, hefore
the judge of the Liverpool county court. A verdict having been
found for the plaintiff,

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 46T'

Raymond, on a former day in this term, obtained a rule nisi to enter
a verdict for the defendant on the first issue, or for a new trial on the
ground of misdirection and that the verdict was not warranted by tha
evidence.

Williams^ who appeared to show cause, took a preliminary objec-
tion, viz. that, at the time the rule was obtained, the defendant had
not procured a copy of the judge's notes. He referred to Chitty's
Practice, 11th edit., vol. 1, p. 427, where it is said that **the motion
for a new trial (a) should be supported by the production of the notes
of the under-sheriflf or of the judge who tried the cause, verified by
affidavit, or by the production of an examined copy of such notes,
together with an affidavit verifying such copy to be a true one.**
' [Erlk, C. J. — It is not necessary to be furnished with the notes at
the time of moving: it is enough if they are produced when cause
comes to be shown.]

The notes and the affidavits proving to be insufficient in the result
to sustain the rule, it was discharged. Rule discharged.

(a) Before the sheriff, Ac, noder the 8 A 4 W. 4, e. 42, 8. 17.

♦ELDRIDGE v. STAGEY and Others. Nw. 6. [*458

There is no illegality in distraining for rent by climbing orer a fence, and so gaining access
to the house bj an open door.

The broker hi^Tiog been forcibly expelled, regained possession by force after an interval of
three weeks : — Held, that he was justified in so doing ; end that it was a question for the jury
whether by staying out so long he had abandoned the distress.

Tms was an action for a wrongrul distress. The cause was tried
before Bramwell, B., at the last Summer Assizes at Croydon. The
facts which appeared in evidence were as folh)W3 : — The plaintiff was
tenant under the defendant Stacey of premises at Yauxhall, in the
county of Surrey. Bent being in arrear, the other defendants were
employed to distrain. On the 6th of November, 1862, the broker, in
the absence of the tenant, got over the fence from the adjoining

garden, and entered the house by the back door, which was only
tched, and then forced upon the front-door and admitted hia
assistant, whom he left in possession. The tenant, on his return
home on the same day, forcibly expelled the man : and on the 26th of
November, the broker resumed possession, by breaking open the
front-door with a sledge-hammer.

For the defendant it was submitted that the original entry by
getting over the fence was unlawful ; and that, assuming it not to
have been so, the broker had at all events, by remaining out of pos-
session for three weeks, abandoned the distress, and consequently was
not justified in entering by force on the second occasion for the pur-
pose of retaking it.

The learned judge ruled that there was nothing illegal in the mode
of taking the distress; and that, having been forcibly expelled, thd
broker was justified in re-entering by force, unless he had abandoned
the first distress, — which que^tiou he left to the jury.

tf 8 ELDRIDGB v, STAGEY. M. T. 1863.

The jury baying found that the distress was not abandoned, a
verdict was entered for the defendants.

♦4.5Q1 -^^^^ now moved for a new trial, on the ground o( •mis-
J direction, and that the verdict was against the evidence. The
original entry was clearly wrongful. [Erls, C. J. — Have you any
authority for saying that the broker could not lawfully get over the
fence to distrain?] In Go. Litt. 121 a., it is said, — " The lord cannot
break open the gates, or break down the enclosures, to take a distress,
and therefore the law accounts it a disseisin." In Brown v. Glenn, 16
Q. B. 254 (E. C. L. B. vol. 71), it was held that a landlord cannot
break open the outer door of a stable, though not within the curtilage,
to levy an ordinary distress for rent. And the case of Byan v. Sbil-
oock, 7 Exch. 72, shows that the landlord can only enter, for the pur-

r of distraining, in the ordinary way in which other persons enter.
remaining out of possession for twentj^-one days, the landlord
must be assumed tO have waived the distress. The finding of the jury
upon that point was not warranted by the evidence.

Erle, C. J. — I am of opinion that there should be no rule. — I do
not think the distress was rendered unlawful by the broker getting
over the fence. None of the authorities cited warrant such a conclu-
sion. Then, if the party left in possession was put out by force, he
was justified in resorting to force in order to regain possession, —
unless, indeed, he had abandoned the original distress. That, bow-
ever, was a question for the jury. It was left to them ; and they have
disposed of it.

The rest of the court concurring, Rule refused, (a)

(q) See Hueock v. Attiton, 14 C. B. N. S. 634 (E. C. L. B. toL 108).

♦460] ♦HEAP and Others v. DOBSON. Nov. 6.

A., B., and C, agreed that eaefa ghould faraiab SOOOt. worth of goods, to be ahipped ob a Jotni
adTonture, the profits to be dirided aceording to the aoiouiit of their Beveral ebipmeDte: — ^Held,
that this did not eonetitate a partnership between the three, so as to make B. and 0. responsible
for goods bought by A. to furnish his quota of the cargo.

This was an action for goods sold and delivered. Plea, never
indebted.

The cause was tried before Erie, C J., at the sittings in Londoa
after last Trinity Term. The facts which appeared in evidence were
as follows : — Pearson, of Hull, was the owner of a vessel called The
Peterhoff, with which he, Dobson, and one G. had had profit and loss
transactions. Pearson representing to them that he had a cargo of
cotton, turpentine, and other goods on the southern coast of the United
States, it was by an agreement dated the 29th of May, 1862, arranged
that the Peterhoff (which was chartered to Dobson) should go out for
the purpose of bringing them home on joint account of the three, and
that goods to the amount of 3000/1 should be shipped by each of tbe
three for an outward cargo, and sold on joint account, the profit of
each on the outward cargo to be according to the value of the goods
•hipped by each. Accordingly, Dobson, who was a wine and spirit-
merchant, put on board wines and spirits to an amount exceeding

COMMON BENCH REPORTS. (16 J. SCOTT. N. S.) 460

SOOOL, C. also shipped 8000/. worth of other goods, and Pearson
shipped, amongst other things, goods to the amount of 1877?. 5a.,
which he had obtained on credit from the plaintifl^. Pearson having
become bankrupt, the plaintiffs discovered that the goods were
shipped as a joint adventure, and accordingly sued Dobson for the
price.

Pearson, who was called as a witness, swore that he had no authority
to pledge the credit of his co-adventurers, otherwise than as might be
implied from the agreement.

On the part of the plaintiffs, it was insisted that "^this was a p^gi
joint-adventure, and constituted a joint liability in the three as ^
partners.

His Lordship, however, was of opinion that the purchase of the
goods was the separate adventure of each, and that the circumstance
of their having a joint interest in the result of the transaction did not
constitute such a relation between them as to give either of them
authority to pledge the credit of his co-adventurers for the goods to
be supplied by him. He thereupon directed a verdict to be entered
for the defendant, reserving leave to the plaintife to move to enter
the verdict for them for 1377 1 5«., if the court should be of opinion
that the agreement of the 29Lh of May, 1862, constituted a partner*
ship between the defendant, Pearson, and 0.

Liish, Q. C, now moved accordinglv. — He submitted that the out-
ward cargo having been put on board the Peterhoff as the joint ad-
venture of the three, notwithstanding the private arrangement between
themselves, they were quoad third persons clothed with all the
authority and responsibility of partners, and consequently each of
the three was liable for the whole amount of the goods snipped on
the joint account. [Bylss, J. — If the agreement had been that each
of the three should contribute to the joint adventure 80002. in money,
instead of that amount in goods, you would hardly have contended
that Dobson would have been responsible to the person from whom
Pearson borrowed his 8000?. to come into the concern.] That would
be a different thing. The case of Kilshaw v. Jukes, 82 Law J., Q. B.
217, approaches very nearly to this. There, A., an ironmonger,
having supplied ironmongery to the amount of 189Z. to B. and C,
who were builders, agreed to join them in the purchase of some land
for building, on the conditions that B. and C. should build* the p^ga
houses, A. supplying the ironmongery required, and that, on *•
the completion and sale of the houses, A. should be paid the 1897.,
the price of the ironmongery, and no more, and that, if no profit was
realized, A. should be a loser. An agreement was. accordingly
entered into by all three with the landowner for the purchase of a
piece of land, and the three bound themselves to complete buildings
upon it according to certain plans, the vendor agreeing to make ad-
vances to the three to enable them to complete the building, and the
three being jointly bound to pay the purchase-money, and the convey-
ance when all was paid to be to the three, or as they should direct
B. and C. having ordered timber of the plaintiff, it was supplied on
their credit (the plaintiff being ignorant of A.'s having any interest
in the building), and it was used on the building. It was held by
Blackburn, J., and Mellor, J., — Wightman, J., dissenting, that A. was

462 HEAP V, DOBSON. M. T. 1863.

not jointly interested with B. and C. in such a way as to make him a
partner and liable for the timber. Wightman, J., there says: *'The
timber, though supplied by the plaintiff upon the application of two
of the defendants only, and upon their credit, was ordered and used
by them.for the performance of a work to be executed by them jointly
with Jukes, and for his as well as their benefit. It is true, as between
themselves, Wynn and Till were to do the work: but Jukes was as
much bound to do it as they were. What they did was in order to
fulfil a contract which the three were jointly bound to perform." That,
it is submitted, is precisely the case here.

Williams, J. — I am of opinion that there should be no rule in this

case. There is nothing in the arrangement to authorize one of the

three to bind the others as their agent in respect of the third share of

♦4631 ^^^ cargo *which he undertook to supply for the joint adven-

-' ture. There clearly was no partnership.

Byles, J. — I am of the same opinion. Each of the parties was to
furnish 3000?. worth of cargo, which was to be on joint account
thereafter. That clearly did not give Pearson any authority to bind
his co-adventurers for a contract made by him for the purchase of his
proportion of the cargo.

Eble, C. J. — I retain the opinion I expressed at the trial.

Bule refused.

SMUBTHWAITE v. BICHABDSON and Another. Nov. 25.

The court will not allow an amendment so as to introduce a new cauie of action, where a
cause has been referred by consent under an order which does not reserve power to the arbitra-
tor to amend. Nor will thej permit the plaintiff to reroke the sabminion, — there being no
suggestion of any breach of faith on the part of the defendants.

This was an action brought by the plaintiff, a merchant at Sunder-
land, against the defendants, shipbuilders at Low Walker, near New-
castle-upon-Tyne, to recover damages for the alleged breach of a
contract for the building of a ship. The original contract was made
on the 24th of April, 1860. The material parts of it were as
follows : —

*' It is hereby agreed that the said J. W. Richardson & Co. are to
build for the said John Smurthwaite the hull, masts, and spars of an
iron clipper sailing vessel to class twelve years A. 1, at Lloyds. [Then
followed the specification, price, and terms of payment.] The said
ship to be completed and delivered as above on or be/ore the 5th day
of December nexV^

On the 5th of July, 1860, the time for the completion of the vessel
was extended by mutual consent to the 5th of February, 1861.

One vessel was not complete on the last-mentioned day ; but not-
♦4641 ^'^^^standing such breach of their ♦contract on the part of the
J defendants, the plaintiff permitted them to proceed with the
construction of the vessel, subject to whatever claim he might have
against them in respect of their failure to complete her within the
extended time.

On the 20th of March, 1861, — the vessel being then nearly com-
pleted, and her launch being confidently expected by both parties

COMMON BENCH REPORTS. (15 J. SCOTT N. S.) 464

wiAin a week, — the plaintiff entered into a sub-contract with one
John Pantaleone Schiliz/.i, for the sale of the vessel to hira for a cer-
tain som, — " the said ship to be guaranteed and classed twelve years
A. 1, at Lloyds :" and it was agreed that the former agreement (between
the plaintiff and defendants) should "form part of that a<p*eenient,"
The last- mentioned contract was accompanied by a memorandum of
extras and alterations which Schilizzi required to be supplied and
made; and by that memorandum the period of two months from the
launching of the vessel was fixed as the time for her delivery to
Schilizzi.

The defendants had notice of the above-mentioned contract with
Schilizzi : and thereupon the following memorandum was endorsed
upon the memorandum of extras and alterations, and signed by the
pJaintift* and the defendants : —

"It is mutually agreed between John Smurthwaite and John W.
Richardson & Co., that, on the said John Smurthwaite agreeing not to
claim demurrage for overtime, the said J. W. Richardson & Co. will
supply the extras and alterations as above described; and the said
John Smurthwaite agrees to make the final payments as per agreement
within eight days after launching, when the builder's certificate will
he handed over and the ship transferred to the said John Smurthwaite.
This agreement is in no way to vitiate the contract above referred to,"

*The launch of the vessel took place on the 26th of March, r^Aa^
1861 : but she was not delivered complete with the extras and '-
alterations and in all other respects according to the original contract
until the 6th of July; and consequently the plaintiff was unable to
perform his contract with Schilizzi. The cause of the delay was, that
Lloyds* surveyor required the masts to be strengthened before he
would certify for her classification.

Schilizzi thereupon sued the plaintiff for his breach of contract.
The now defendants had notice to come in and defend that action,
which they refused to do. The plaintiff; having no defencp to the
action, agreed to refer the amount of damages to arbitration, and an
award was made in favour of Schilizzi for 400^. lO*. 6c/., and costs,
which latter amounted to 111/. 195., which, together with his own
costs of defence (120?.), the plaintiff paid.

The present action was then brought to recover from the defend-
ants the damages and costs above mentioned, as well as for the
recovery of general damages for the defendants' breach of contract.
The defendants also brought a cross-action against the plaintiff for the
price of certain extras : and it was agreed to refer both actions to Mr.
Price, Q. C.

By the order of reference, it was, amongst other things, directed
that the arbitrator should be at liberty, at the request of either party,
and before making his award or certificate, to state a special case for
the opinion of the court upon any point of law which might be raised
before him in the course of the saia reference; and that the arbitrator
should be at liberty to find generally for the plaintiff or for the defend-
ants without finding on any of the specific issues joined in the said
cause, unless otherwise requested by either of the said parties. It
was further ordered that the •parties should produce and aamit r^Aaa
before the arbitrator all contracts, &c., relating to the ship, and ^

466 SMURTHWAITE v, RICHARDSON. M. T. 1863.

also the contract between the plaintifT and Schilizzi, "and the pro-
ceedings, order of reference, award, and bills of costs both of plaintiff
and defendant in the action brought by Schilizzi against the now
plaintiff." But the order of reference contained no power for the arbiirch
ior to amend the pleadings.

Whilst the reference was proceeding, the plaintiff discovered that
the declaration was defective in not containing any averment of a
breach of the contract in respect of time. The defendants refused to
consent to any amendment. But it was ultimately arranged that the
arbitrator should take all the evidence upon the assumption that the
declaration and replication had been actually amended, and postpone
the making, of his award in order to give the plaintiff an opportunity
of making such application to the court as he should be advised.

S. Temple, Q. C, accordingly, on a former day in this term, moved
for a rule calling upon the defendants to show cause why the declara-
tion should not be amended, or why the order of reference should not
be amended by giving the arbitrator therein named all powers of
amendment of a jud^e at nisi prius; or why the plaintiff should not
be at liberty to revoke the submission, unless the defendants would
consent to such amendments being made as the court should think fit
[Erle, C. J. — What evidence have you that it was in the contempla-
tion of the parties to refer the matter as altered by the proposed
amendment?] In Alder v. Pack. 5 Dowl. P. C. 16, a plea of judg-
ment recovered puis darrien continuance was allowed to be added
pending a reference. [Bylbs, J., referred to Gibbs v. Knightly, 2
^.g.^^ Hurlst. & N. 34, and Thompsett v. Bowyer, ♦O C. B. N. S. 284
^'J (E. C. L. R. vol. 99), where the Court of Exchequer and this
court amended orders of reference.] There were expressions found
there which are not in this order.

A rule nisi having been granted,

E. James, Q. C, and Bruce, now showed cause, — The court has no
power to do that which is asked. The order of reference was made
Dy consent. Time and delay formed no part of the cause of action
which the defendants have consented to refer. The proposed amend-
ment introduces a totally different matter, and one which possibly the
defendants would never have consented to refer. All that this court
did in Thompsett v. Bowyer, was, to hold that " usual terms," includes
a power to the arbitrator to amend: and Erie, C. J., in giving judg-
ment, says he entirely agrees "that the parties to the agreement have
a right to make what bargain they please, and that the court has no
power to add to or subtract from what they have so mutually agreed."
Morgan v. Tart, 11 Exch. 82, is a still stronger case. It was there
held, that, where a cause is referred to arbitration without power of
amendment, a judge has no power, except by consent of the parties,
to order the particulars of demand specially endorsed on the writ to
be altered by increasing the amount of one of the items.

Temple, Q. C, Udall^ and Lewers, in support of the rule. — It may be
that the amendment prayed is unnecessary, — the words '^according to
the said agreement^' sufiBciently involving time. [Bylss, J. — The
amendment is either unnecessary or it is unauthorized.] Since the
Common Law Procedure Act, 1852, the power of the court to amend
is almost without limit. Assuming that the court cannot grant the

COMMON BENCH REPORTS. (15 J. SCOTT. N. S.) 467

amendment prayed here, thej will at all events allow the plaintiff
♦to revoke the submission, unless the defendants will consent r^Aag
to the record being amended so as to put in issue the matter ^
really in contest between the parties.

Erle, C. J. — We have no power to make the parties refer that
which they never consented to refer. I think the defendants had a
right to look at the cause of action alleged in the declaration, and
refer that; and that they had a right to refuse to refer any question
of liability arising out of the plaintiff's contract with Schilizzi. Nor
will we give leave to revoke a submission, unless satisfied that there
has been a breach of faith on the other side.

The rest of the court concurring,

Rule discharged, the defendants' costs of the application to
be costs in the cause.

ALLABD v. BOURNE and Others. Nov. 9.

A benefit building Boeiety Ib bound hy ordera for neeeuary repsin given by the seoretftry
thongb not sanetioned by the number of tmstees required by the rulei for transaoting the ordl-
Bavy bnaisMfl of the company, or entered in the minute-book.

This was an action brought by the plaintiff to recover the price of
certain work done by him m repairing certain houses of which the
defendants, as trustees of a benefit society established under the pro-
visions of the 6 & 7 W. 4, c. S2, called The Planet Benefit Building
and Investment Society, were mortgagees. The plaintiff claimea
89L 145.

The cause was tried before Keating, J., at the *aittin^s in p^gg
Middlesex after last Easter Term. It appeared that certain of *-
the repairs, which amounted to 29Z. 145., had been done by the plain-
tiff on the order of one Spurgeon, the then secretary of the society.
And Spurgeon, who was called as a "witness, swore that he as agent
for the society was in the habit of giving orders for small repairs, that
he did not think it worth while on this occasion to incur the expense
of calling a meeting of the directors to discuss the matter, but that he
had mentioned the subject of these repairs to two of the directors, and
they approved of their being done.

On ihe part of the defenaants, it was submitted that the plaintiff
was not entitled to recover in respect of the repairs which had been
done upon Spurgeon^s orders, such orders not being warranted by the
rules of the society.

The rules pTovided, amongst other things^ that the society should
be manage(^ by a board of not less than nine or more Xhan twelve
directors, — of whom five to compose a board ; that the directors should
meet as often as the business of the society should require their attention,
and that they should order the payment of all moneys due from or to be
advanced by the society, such order to be entered in the minute-book
and signed by the chairman; that the directors should have power to
appoint agents or other officers; that each director' who should attend
the meetings of the board should be aUowed the sum of 5s. ; that the

469 ALLARD v. BOURNE. M. T. 1863.

secretary should enter minutes of all resolutions and the business of
the society in a rough minute-book, the same to be copied fairly into
another, to be read as part of the business of the next meeting, and
to be signed by the chairman ; that the secretary should give imme-
diate information to the chairman of anything that might come to his
•4701 ^^"^^'^^g®i which he apprehended *would be of advantage or
-I disadvantage to the society, in order that they might deliberate
thereon. &c. It did not appear that any entry had been made of the
repairs in question in the minute-book.

The learned judge left it to the jury to say whether or not tho work
had been done upon the order of a duly-authorized agent of the society.
The jury found that it had, and accordingly returned a verdict for the
plaintiff for the sum claimed.

Huddleston, Q. C, in Trinity Term last, obtained a rule nisi lo
reduce the verdict by the sum of 291. 145. for work done to one of the
houses, on the ground that there was no evidence to show that any
authority was given by the defendants to execute the repairs in ques-
tion, so as to fix them with liability.

Shee, Serjt., and Q, Bvans, now showed cause. — ^There is no doubt
that Spurgeon, by whom these repairs were ordered, was the agent of
the society, and that the society bad the benefit of them. But tbe
contention on the part of the defendants will be, that, in order to
authorize Spurgeon to give the order, there should have been an entry
in the minute-book, signed by the chairman at a meeting of the
directors or trustees consisting of five at least. Is there anything in
the rules to warrant that ? A corporation commonly contracts by
seal ; but for ordinary matters of routine orders may be given without
that formality. These repairs were matter of obvious necessity: rent
could not be received from the premises unless they were done. The
directors (two of them, at least,) were aware of the order given by
their secretary, and they expressed their approval. [Eblb, C.J. —
I am at a loss to see why the defendants snould not pay for work
^Aiii *which has been done for them, as found by the jury.]

-I Waddy (with whom was Huddleston, Q. C), in support of
the rule. — The duties of the secretary are defined by the rules of the
society. He could not order these repairs in the manner he did, so a